Lawyers may have imagination, but they may not understand process

Yes, I found the Scrabble tile in the street. The “I” just spoke to me.

Last week, I promised a conversation about strategy as it relates to law practice. Here we are.

You rarely hear magazines singing the praises of other magazines. I suppose that would be a little like a law firm crowing about the terrific work another law firm does.

Despite that, I have to mention an article I read in Law Practice Magazine the other day. And the fact that it was written by an old friend of mine is immaterial.

LPM, in case you don’t know, is a publication of the American Bar Association. It typically has good content. Their July/August issue caught my eye right away, though, for a few reasons.

The first is that they had the good sense to put Richard Susskind on the cover. Any magazine (for lawyers) that has the good fortune to publish the legal futurist Susskind had better have the sense to put him front and center. And so kudos for that.

The second thing that caught my eye? It’s their “Big Ideas Issue.” Their inaugural Big Ideas Issue, in fact.

Well, I’ll be.

Let me tell you how I know that’s a great idea. We did the same thing in Arizona Attorney Magazine, way back in September 2010.

We loved the content (well, I did, anyway). But ultimately we decided we were in the Ideas business every month, so restricting the concept of Ideas (or the idea of Concepts) to a single month seemed self-defeating.

But now that I see how well LPM has done with the theme, I may steal borrow it back.

In any case, back to that article I enjoyed so much.

Attorney Mike Ostermeyer would like to see more strategic thinking in BigLaw.

It’s titled “A Big Idea for Biglaw? Just One Word: Strategy.” The title’s a bit cumbersome, but there’s gold in them thar hills.

The author is a BigLaw partner himself. Mike Ostermeyer works in the Milwaukee office of Quarles & Brady.

(He and I were in English graduate school together at Notre Dame back in the ‘80s. He then realized law was his future before I did. The best-dressed we ever were together was when I was a groomsman in his wedding.)

From his Midwestern perch, Ostermeyer offers a hard look at some of the central challenges facing big law firms today. His writing is good, but his prognosis is not rosy.

His article’s foundation begins with a seminal definition:

“What is strategy? For Michael Porter—the Harvard Business School professor who largely created the field, and who today remains its most prominent figure—strategy is the purposeful definition of differences. Indeed, for nearly 20 years since his seminal article ‘What Is Strategy?’ appeared in a 1996 issue of the Harvard Business Review, Porter has consistently emphasized that strategy is about only one thing: fundamental difference.”

Definition set, Ostermeyer then asks and answers a compelling question: “Why is strategy so hard for BigLaw?”

If that seems ouch-worthy, you should read his entire article here.

Among the lessons he imparts, he tells a story that is worth reprinting in full:

“Many years ago, on my very first day as law clerk to a federal judge, my judge told my highly impressionable 27-year-old self: ‘You’re a professional now, and the best thing about being a professional is’—and here he paused for effect—‘that you’ll know what you have to do, but nobody will ever tell you how you have to do it.’ Now, you may fairly disagree over whether that approach suits partners in a business organization—even if that organization is a professional services firm. What you cannot argue, though, is that strategy simply doesn’t work that way. Rather, it rises or falls on what strategists call “fit”—as Bamford and West define it, ‘tight coordination and internal consistency of action across the company.’ Without fit, strategy fails.”

That was an aha moment for me. Reading Mike’s story, I recalled a compelling New Yorker article I read last fall. It was written by Atul Gawande and was titled “Big Med.” His question was, What can medicine learn from the Cheesecake Factory? (you read that right)

Yes, we’re always on the hunt for great ideas, too.

Gawande’s point was not that medicine should be rote—neither is the restaurant, he found. But he was struck at the amazing variety of approaches medical professionals take to complete often routine care and procedures. Lost amidst the sense among doctors that “We are professionals and cannot be told there is one best procedure” is the fact that there may actually be one best procedure for many ailments. But the pros refuse to be streamlined into a consensus.

And that’s what Ostermeyer was told by his federal judge. But whereas Gawande bemoaned it, the judge—and most lawyers—revel in their individuality, even when it comes to techniques easily unified.

Gawande spoke with many doctors, finally finding one who understood the value of a best way whenever possible. That doctor said:

“‘Customization should be five per cent, not ninety-five per cent, of what we do,’ he told me. A few years ago, he gathered a group of people from every specialty involved—surgery, anesthesia, nursing, physical therapy—to formulate a single default way of doing knee replacements. They examined every detail, arguing their way through their past experiences and whatever evidence they could find. Essentially, they did what [the Cheesecake Factory] considered the obvious thing to do: they studied what the best people were doing, figured out how to standardize it, and then tried to get everyone to follow suit.”

That may be tough medicine for lawyers. But as revenues are driven down by international competition by lawyers and non-lawyers, streamlining wherever possible may be part of a success story. After all, law may not be a commodity; but some of the tasks lawyers perform are exactly how we define commodity.

Here in Arizona, is there a big-firm partner who is similarly willing take to a steely look at the profession as it is (rather than as we wish it were)? If so, I’d love to talk with you. Perhaps there should be a magazine column in your future.

Write to me at arizona.attorney@azbar.org.

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