I grew up playing and watching basketball (as you might expect from someone growing up in Indiana). My favorite play to watch is still the well-executed fast break. When I was in college at Indiana, I used to marvel at the team’s ability to run a multi-player fast break without ever needing to dribble. It looked like magic to me.
As the 1974/75 Hoosiers team would run it, the fast break would start with Benson on the rebound. He would have to immediately recognize his placement on the floor and the position of the other team’s players. If there was an opportunity, he would plant and pivot to the outside of the court. The forward on the strong side, usually Abernathy, would move to position in the outside lane at roughly the free throw line extended. In the meantime, Buckner, the point guard, would have moved to center court and Wilkerson and May (the guard/forwards) would have moved to fill the outside lanes. Pass to Abernathy, pass to Buckner, movement of the ball to the free throw line, recognition of the open man, deliver the ball and boom, lay up or short jumper.
When they were really on, they would do it without dribbling the ball. (I get teary just thinking about it.)
At the highest level, of course, a fast break like that requires supremely talented players, each with their own unique magic. That, however, is only part of the story. It also requires practice, practice, practice. The players gifted with the necessary speed and agility must hone their individual judgment to spot the right opportunity to initiate the play and the ball-handling skills to execute the passes.
But equally, it involves breaking the play down into its component parts and coordinating those components in just the right way: making sure every player on the court knows when and where to be on the court, looking at the spacing, positioning, the ball movement — in short, the process that enables the magic.
Only by understanding the process can the fast break play be executed by players properly and consistently, over and over. And only by looking at the process and the execution of the play can the players improve over time.
We don’t seem to believe that this analysis applies to the practice of law.
Traditionally, our self-image has hinged upon the view of the practitioner as a highly credentialed professional with specialized knowledge that is inaccessible and incomprehensible to laypersons.
The “artisan complex” imposes a view of legal practice as disconnected acts of magic.
There are significant advantages to this viewpoint: prestige, illusion of scarcity and pricing power. Our systems are built to reinforce this perspective for the industry — from law school structures to bar regulations.
Articulating the dilemma in the context of his “knowledge funnel” analysis, management thinker and author Roger Martin describes it this way:
Out of sheer self-interest, they are reluctant to relinquish their enigmatic and valuable capability. …They have the skill — the heuristic inside their heads — and the company has the capital. The company would like maximum compensation for providing the capital. The talent would like maximum compensation for running the heuristic. As long as the talent keeps its heuristic shrouded in priestly secrecy, it can bargain successfully for a bigger share of the value it creates. …
In many organizations, including professional service organizations such as law firms . . . talent is winning this battle. And the price of maintaining an ongoing monopoly on important heuristics is high. These heuristic-running high priests create a big bottleneck in the middle of the knowledge funnel, blocking the movement forward to algorithm.
Roger Martin, The Design of Business.
Let’s not kid ourselves. Expertise, wisdom, experience play critical roles in the provision of legal services. When they exist and are deployed properly, they should be valued and, frankly, paid for. Market scarcity and market economics both attest to the rarity of the gifts and skills required for that magical fast break. But when the mechanics of the profession are simply tucked away in a black box, it is difficult to see opportunities for service delivery improvement. The practice is simply not a series of disconnected insights — rather there is a process at work that supports even the most difficult legal issues.
Looking at the practice of law as a collection of processes — or in other words, an interconnected chain of value-creating activities — opens up new possibilities.
Most legal projects (deals, cases, whatever) are handled by teams of lawyers. Handoffs, rework, duplication of work, less-than-clear communication channels all conspire to add unnecessary complexity (confusion, delays, frustration, and yes, costs) to the project.
Take the surgeon. Even the most highly skilled surgeon requires a team (and, yes, not every surgery requires the most highly skilled surgeon). More to the point, the team is not redesigning the operation every time it occurs. Indeed not. There are standards and protocols — the types of equipment necessary, where the equipment is to be placed, the pre-surgery protocols, the steps in the procedure itself. And on and on. When something goes off plan, we all want the surgeon with the magic hands to get it back on track but there is an underlying process at work.
The same variables apply in the context of delivering legal services.
While there are perhaps multiple ways to look at this challenge, we found that the underlying structure of lean methodology presents a framework to analyze legal work in a structured way, to break down legal work into more manageable pieces and to see how the pieces connect. The idea of analyzing and reengineering the basic unit of work — a process being that basic unit — to streamline & simplify the overall client experience thus becomes more intuitive.
In order to achieve this mindset, you need to deal with the fear of displacement — the concern that the profession will be taken for granted and high-level competencies will be devalued. These are certainly fair and understandable concerns. The reality, however, is that the willingness to engage in a full and candid discussion about service delivery and how business objectives can be met does not degrade the credentials or specialized expertise — it enhances them.
Let me repeat that point.
Looking at the practice of law through a process lens enhances the value of the artisan.
Counterintuitive? Perhaps. However, the process approach gives us the basis to assign relative value prioritization to each activity in the value stream. It reserves the highest-value activities for those with the credentials, specialized expertise, and the experiential know-how to handle them.
Further, it highlights those high-value activities and recognizes their importance. In addition, it places the expert in the role of designing a service delivery model that meets the strategic needs of the client, which can only enhance the business relationship.
Let’s use another example.
Examining service delivery through the prism of process-disciplined thinking is akin to the art of choreography in dance. Each individual is a highly gifted artist who has honed his or her craft through many years of practice and study — but the choreography in itself is a technical craft, one that brings together a larger group into a harmonious whole, creating something that is greater than the sum of its parts.
There are still moments of individual virtuosity and wisdom — magic if you will — that happen in handling business problems rooted in the law. As I said earlier, those moments need to be supported, celebrated and paid for.
But first and foremost, the magic moments need to be identified, and the process-focused mindset allows us to make the positive ID.
Ultimately, it is a question of balance. This is not to say that every piece of legal work can be standardized and codified such that the human element can be removed; that is demonstrably untrue. Some legal work, however, can be codified. Some can be structured such that it can be systematized and made more efficient.
Looking at the delivery of services as a process is the key to finding this balance — and picking the right spots for drive efficiency and enhance quality.