We Need To Start Creating Narratives That It Is Safe To Change

Birgitta Jónsdóttir

Ken Grady
Ken Grady
Jul 25, 2017 · 5 min read

I n a hotel room in Russia, three individuals met for a conversation. One was Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School. The second was Birgitta Jónsdóttir, an Icelandic politician, anarchist, poet, and activist, and currently a Member of the Althing for the Southwest Constituency representing the Pirate Party. The third was Edward Snowden, an American computer professional, former employee of the CIA and private contractor doing work for the NSA who is accused of disclosing classified information. The film of that discussion is available on Arte through August 10, 2017.

Americans have visceral reactions to Edward Snowden. Some applaud him, others call him a traitor. Lessig is a highly respected professor who has been an activist for restoring democracy to America. Jónsdóttir also has been an activist, and succeeded in getting 10 members of the Pirate Party, which also works for democracy, elected to the national parliament of Iceland. The discussion among Lessig, Jónsdóttir, and Snowden was not about what each of them has done. It was about a larger issue, democracy.

As the discussion flowed, they moved to an intriguing question, one that many of us have struggled with on the smaller stage of the legal industry. Why is it that people will not step forward and argue for change? What is it that holds them back, even in the face of overwhelming evidence that change is needed?

Resistance to change has been a long-standing issue in the legal community. We can understand why law firms resist change. The business model has been very successful for 150 years, earning lawyers the top profitability spot among service providers. As Richard Susskind often says, it is tough telling millionaires that what they are doing is wrong.

We have struggled with resistance to change among the buyers of legal services, particularly at the corporate level. The last few decades we have seen corporations squeeze their employees and processes, wringing profits out of waste. Productivity has improved, though it still has a long way to go. But corporate focus on cost cutting has been felt by most.

Law departments have been spared. Of course, not if you listen to general counsel. They point out that demand for legal work keeps climbing as regulatory and compliance activity increases globally. New challenges from technology and rapidly shifting business models increases law department workloads. CFOs have been merciless, asking general counsel to hold spending even with prior years and in extreme cases decrease it by 10 or even 20 percent. General counsel, to hear them tell it, are facing brutal pressure.

Reality differs greatly from the the story general counsels tell. By objective measures (see, e.g., McKinsey & Co. study), cutting 23% of what law departments do requires nothing more than some basic tech that has been around for years. Add to that another 25% or so cut from removing waste. Today, we have enough examples (sparse, but enough) to know these goals can be achieved and in short order. Deeper cuts, greater efficiencies, and higher quality take a bit more work, but nothing remarkable.

Instead of following the path to such improvements, general counsel and their teams resist change almost as strongly as their law firm counterparts. The primary law department response to the perceived pressure has been to increase hiring, stop sending work to outside law firms, and rely heavily on the law department team. In years past, the law department spending split was reliably 40% law department, 60% outside counsel. Today, law departments keep 75% of legal work in-house and only send 25% to outside counsel, which has dropped outside counsel spending.

A brief mention of the legal needs of society seems appropriate. The Legal Services Corporation is fighting defunding. The legal needs of the less advantaged and the middle class continue unabated. The model used by lawyers since the early 1900s when Reginald Heber Smith’s Justice for the Poor was published has not worked.

Make all 1.3 million licensed lawyers (many of whom are retired or don’t practice) provide charitable legal services and you still could not meet the legal needs of individuals. Yet, when given the opportunity to embrace change, lawyers serving the middle to low end of the economic spectrum have been just as recalcitrant as their colleagues serving the high end.

We are back to the question discussed in that Russian hotel room. Why is it that, faced with overwhelming evidence that change is needed, lawyers refuse to change? We should consider what Birgitta Jónsdóttir proposed sitting in that room, “We need to start creating narratives that it is safe to change.”

Change for lawyers involves risk, and risk is what lawyers want to avoid. But what if the narratives changed encouraging lawyers to take risks when doing so benefitted clients? What if we taught lawyers that clients will accept greater risk in exchange for lower costs, faster resolution, and higher quality? Clients do not want to eliminate risk, they want to manage risk to a level they can accept.

Lawyers do not recognize that there is risk in eliminating risk. The “no risk” solution may be the most dangerous solution. A corporation that does not take risks will die. People who do not take risks do not experience life at its fullest. Life is risk, and attempting to remove that risk has consequences more severe than accepting and managing risk.

Lack of respect for the rule of law is destabilizing countries. People are struggling to know the boundaries, to know what is and is not acceptable. Civil disobedience was once a remarkable act. People are angry because they cannot get access to and value from the law. Lawyers perpetuate this problem by refusing to change and modernize the system. This is not a healthy trend and is not going to lead to a positive outcome.

Change will come even though lawyers resist it. The trend for individuals is to do without lawyers. Self-represented litigants are increasing in numbers and dominating the dockets of many state courts. Business people are finding ways to circumvent their law departments and outside lawyers. Corporations are privatizing the law, bringing in-house dispute resolution mechanisms and creating their own legal systems. Lawyers who think resisting change will bend others to their will are sadly out of touch.


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, leadership, and artificial intelligence. You can follow him on Twitter, connect with him on LinkedIn, and follow him on Facebook.

The Algorithmic Society

Bridging digital, human, operational realms

Ken Grady

Written by

Ken Grady

Writing & innovating at X of people, processes, & tech. Adjunct Prof & Research Fellow MSU Law, @LeanLawStrategy; https://medium.com/the-algorithmic-society.

The Algorithmic Society

Bridging digital, human, operational realms

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