Lawyers Should Break The Bad Puffery Habit

Data is bringing the age of accountability to the legal industry

For many years, I focused my practice on trade regulation and securities law. As a junior trade reg lawyer, I often had the task of reviewing advertising copy to guide clients on various issues, such as claims of environmental benefits, “Made in USA,” and puffery (ahem, “deceptive advertising”).

For a trade reg lawyer, the challenge is to distinguish between subjective claims and objective claims. Subjective claims (“this is the best hamburger in the world”) are okay, but objective claims (“our hamburgers have more beef in them than our competitor’s”) need “adequate substantiation.” As you might imagine, it is the gray zone in the middle that gets the most attention.

Although trade regulation law and securities law are distinct fields, some concepts in law do not respect the artificial boundaries drawn by humans. As an in-house lawyer, you see this more than as an outside lawyer. Clients do not come with pigeon-holed questions, they come with problems that need solutions. They do not care whether you want to call it trade reg or securities law.

The subjective-objective issue comes into play in the securities law when you make public statements about a company, and here I am referring to publicly held companies. If the CEO of your company is quoted as saying, “I feel our company’s products are the best you will find anywhere in the world,” you will not have an issue. If instead, she says “Studies show our products outperform competitive products around the world,” you better have a file stuffed with those studies.

As a general counsel, I spent time focused on the accuracy of statements from my company. Those statements could be in analyst presentations, securities filings, or other key documents. I knew that I and my team would vet materials carefully and those I talked to at other publicly held companies similarly took this task seriously.

Legal Industry Puffery

When I retired from working as a general counsel, I re-entered the chaotic world of the legal industry at large. Competition had intensified, what clients wanted from their outside lawyers was ambiguous, and law firms were lost at sea. This mix opened the door to exacerbating a bad habit that has plagued the legal industry for decades.

Lawyers have never had objective measures of anything. Every law firm could claim to be the best and that was okay. In recent decades, rankings and surveys have tried to introduce objectivity but they are more collections of opinions. If 100 general counsel say firm X is the best, then clients and lawyers assume that means it is the best. “Best” can be replaced by other soft adjectives, but at the end of the day the data just wasn’t there to argue with the opinions.

This bad habit has spread. New players in the industry have picked it up. The firms have increased the output of puffery. Lawyers individually are still a bit wary — they are, after all, subject to disciplinary action if they get carried away. But safety in numbers means that law firms can claim organizational attributes that no lawyers would want to claim for themselves.

Another driving force, I suspect, has been the explosion in requests for proposals (RFPs). Avoiding tough questions and going instead for objective information, regardless of its value, RFPs love to ask questions without the follow up. “Does your firm have a project management program?” Law firm checks “yes” and moves on. Little do we know that the law firm has one, part-time person doing “project management” supporting a 1,000+ lawyer firm.

“Does your firm do alternative fees?” Law firm checks “yes” and moves on. Again, we do not get into the fact that the law firm means fee caps, or that “yes” means “only under extreme duress.” You may consider those minor lapses, but they represent only one aspect of the puffery problem.

Here, we can turn to technology. A firm without technology today is a firm that isn’t in the game. Solution: sign up some vendors, issue a press release, and now you are a tech savvy firm. We will gloss over some facts. Few (maybe none?) of the lawyers in the firm know how to use the tech. Most, will refuse to use it on their matters. Understanding the tech and using it intelligently may have been implied in the press release, but are not part of the firm’s reality.

Puffery As Signaling

Law firms succumb to the puffery pressure, but law departments and legal services vendors also get caught up in the competition. Sometimes organizations use puffery as signaling. Saying you have signed a deal with vendor X, even though you seldom use vendor X’s tech, signals the world you are a modern player in the industry. It signals your competitor’s that you are at the front of the pack.

Vendors, especially tech vendors, come from a market where puffery has a long and storied past. At one time, Silicon Valley was known as the land of vaporware. Announce a product long before it is ready for the market and see how the market responds. If the reaction is favorable, then build it, and if not, kill the program. Either way, you probably delivered a nice shock to your competitors (who promptly responded with their own vaporware announcements). The companies, like the law firms, were privately held so no investors were misled.

This signaling effect is interesting, but hardly justifies the extent to which law firms will go. I have talked to law firm leaders about this and the response is to shrug their shoulders and say it is the culture of the industry. It seems they view this as a “no one gets harmed” type of offense.

The Worm Is Turning

When the industry lacks standards then puffery abounds. Productivity, quality, timeliness, all lack common standards in the legal industry. You are what you say you are and no one can show, objectively, you aren’t. Except that is starting to change.

Citizens have cherished the notion that judges are a cut above. Through their training, experience, and even through the selection process, judges are individuals who put aside petty human foibles and decide cases as judges should decide cases. Judges ignore the legally irrelevant, focus on the law and the relevant facts, and make decisions. A judge may have a particular viewpoint — liberal or conservative — but regardless of that viewpoint they decide cases based on the law.

Political scientists, who almost exclusively study the U.S. Supreme Court, have looked at causation when it comes to decisions. They have examined how political ideology influences the Court. But when it comes down to it, we want and expect judges to be judges (or justices). So it came as something of a shock when a recent study showed that judges are just like the rest of us and make decisions based on what they should have ignored.

Professors Holger Spamann and Lars Klohn published a study titled “Justice Is Less Blind, and Less Legalistic, than We Thought: Evidence from an Experiment with Real Judges.” The question they asked was simple: would real federal judges be swayed by legally irrelevant facts about the defendants? A survey of law professors indicated they would not. The authors thought they would not. The data from the experiment showed they were — overwhelmingly so.

There wasn’t any puffery involved, but there was a gap between reality and perception. Data exposed the gap. It also pointed out what clients should be doing: not letting the puffery or simple check-the-box answers go by. They should be asking for data (and not surprised when very little exists).

This is one study, but it is part of a trend gathering momentum. Empirical studies of questions that in the past were left to puffery. Modern tools such as natural language processing allow us to do deeper dives into text. We can develop quality measures based on objective data. We can look at courts, at law firms, at lawyers, and ask pointed questions about their performance, and we can get data driven answers.

We need to couple these answers with judgment and human understanding, but data provides us a new dimension, a new view into what was all opinion. This should raise a warning sign for all in the industry.

Innovation Does Not Mean Puffing

The sad truth is that many lawyers and law firms equate innovation with puffing. They must, they feel, state something extreme to get any attention. Simple innovations will not do, one must be at the point tip of the spear.

For those who want to innovate, this drive creates an interesting problem. Does an innovator do the types of things that will bring real value to the firm and clients, even though they aren’t splashy? Or, does the innovator have to shoot for the stars or at least convince the world they shot for the stars? Doing the second may risk getting lost in the general noise, but doing the first could bring real benefits now.

Break The Habit

The simple truth is that it is time to break a bad habit. Law firms, law departments, legal service vendors, and even lawyers, should get away from puffery and move to objective (and supportable) statements. Doing otherwise does a disservice to the profession. Or, in harsher terms, it sets all of us up to look like fools when others come in and show, with data, that we had more air in us than a puffer fish.

Whether giving a presentation at a conference, applying for an award, meeting with a client, or writing a blog, the legal industry should do what we thought judges would do — stick to relevant facts. Why? Because many of us are now building the tools and models to expose the puffery and get to the hard truths (and yes, those hard truths also involve academic puffery). The world has changed and data is here to stay. Remember the proverb:

It takes years to build up trust, and only seconds to destroy it. -Unknown

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About: Ken is a speaker and author on innovation, leadership, and on the future of people, process, and technology. On Medium, he is a “Top 50” author on innovation and leadership. You can follow him on Twitter, connect with him on LinkedIn, and follow him on Facebook.