Why Excellence In Craft Matters

Most lawyers have lost sight of excellence in craft

The subtitle of this article is a strong, provocative statement. But, it is one supported by my experiences as a general counsel as well as many surveys of general counsel. It also is supported by clients who, increasingly, have jettisoned outside counsel for mediocre performances. And, it is supported by new evidence coming out of Judicata that shows what happens when excellence is part of a legal practice.

There was a time when law firm reputations were defined by the “quality” of the lawyers they hired (code for what law school the lawyers graduated from and their ranking in their class) and the stature of the clients they represented (code for whether they represented the elite of corporate America). The top firms, primarily New York firms, commanded top dollar for their services and were admired as the elite legal practices in the United States.

As this 2009 article by Michael Dorf points out, however, quality in lawyering has been an elusive thing:

The core problem here is asymmetrical information. To know whether a lawyer is providing excellent services, the client must know the difference between excellent lawyering and mediocre lawyering. Some indicia will be apparent to any reasonably well-educated client: Briefs and other documents with numerous grammatical errors, for example, would bespeak a lack of basic professionalism. Yet beyond detecting minimal competence, clients will be hard-pressed to know when lawyers are providing value for money.

And that will be so, even when a client has an excellent internal general counsel’s office reviewing the work product and billing practices of external lawyers. Clients hire external lawyers precisely because their in-house legal personnel lack the expertise and/or manpower to handle certain complex matters. But those very same deficiencies will greatly limit the ability of in-house counsel to supervise or even comprehend the value of the external lawyers’ work. Hiring more and better lawyers in-house would ameliorate the problem, but would add new, recurring expenses.

While there wasn’t any objective evidence to support the belief that the elite firms were better than other firms, the belief prevailed. Over time, however, firms regressed toward the mean. The elite firms held less power over the “top graduates of the top law schools.” Firms outside of New York and regional firms hired the graduates at the same level as the elite New York law firms. Top lawyers from the elite firms left to start boutique firms or competing firms, further dispelling the notion that you could only get elite services at the elite New York law firms.

At the same time the elite New York law firms were fighting battles for the “best” students from the “best” law schools, law firms were growing. It became more difficult to ensure that all lawyers in the firm received the same training and practiced at the same standards. Further diluting the firms service levels, they began bringing in lateral partners and associates. Trained at other firms, these lawyers did not share the same background or standards as lawyers trained at the hiring firm. Law firms became agglomerations of lawyers with different training, experience, and practice backgrounds. Clients noticed the changes, complaining that standards were not consistent within the firms.

As large law firms went through the incredible growth spurt of the 1970s, 1980s, and 1990s, the profession went through a fundamental change. The focus on training and consistency that had marked firms in prior decades gave way to a focus on hours. I saw this as I worked in large firms during this growth period, first as a paralegal, then as an associate, and finally as a partner. The fast growth coupled with the churn among associates (and today among partners) meant it was not possible to train lawyers in the “firm’s way.” Lawyers were not around long enough to internalize how the firm did things. And, of course, how the firm did things was becoming difficult to define. Associates might work for partners who had been with the firm for 20 years or 20 days.

Excellence Versus Mediocrity

Itai Gurari’s article about Judicata’s recent research using its Clerk tool shows that legal briefs filed in California by John Quinn, founding partner of Quinn Emanuel Urquhart and Sullivan, LLP, consistently scored higher than briefs filed by other major firms. In other words, at least according to Clerk, John Quinn demonstrates consistently higher quality in his work product than lawyers at 20 large firms. This software breaks new ground, because it becomes easy to objectively compare the performance of lawyers.

But, the real story here, is about excellence in craft. What does it take to become a lawyer who excels at what he or she does? What type of commitment is involved? What sacrifices must that lawyer make? What are the consequences of not excelling at the craft? Why aren’t the lawyers at the other firms, all of whom charge premium fees for their services, excelling at their craft?

During the period 1970–2000, one could be an average lawyer at a large law firm and still do quite well (solo and small firm lawyers, on average, lost a lot of ground). Demand for legal services kept growing, and clients were not yet willing to challenge the hourly billing model (there were a few exceptions). As the regulatory and compliance climate became more complex, firms could grow revenue and profits (except for a minor legal recession in the 1990s) at a pretty good clip. Prior to the 1990s, many firms promoted average and even below-average lawyers to partner. When the 1990s came around and the legal industry experienced a brief, minor recession, a few firms took the bold step of moving those below-average lawyers out of the firms (causing shock waves, because removing partners was still novel).

Excellence in your craft was no longer regarded as the ticket to success. The ticket was to generate revenue. It was better to spend time on marketing and reeling in clients than on becoming proficient in your field. There always were some lawyers who tried to do both and even fewer who focused on becoming experts hoping that would draw in clients. But, the vast majority of lawyers shifted their focus from expertise to marketing. That meant they still concentrated their services in a particular field. But, it didn’t mean they excelled in that field.

Lack Of Excellence

Today, the lack of excellence in craft among lawyers is one of the reasons many firms are struggling. If your lawyers are average — commodities in the vernacular of many general counsel — then you don’t have much to sell. A John Quinn, on the other hand, can and is selling excellence in craft. And, he now has additional numbers to stand behind his claim to excellence.

This “excellence” lesson is something difficult for law firm partners to absorb. They want their marketing teams to go forth and sell the benefits of the firm and the individual lawyers. They don’t realize that those benefits have largely disappeared. Clients want to buy the services of experts who excel at what they do. When you are such an expert, as John Quinn is, then “marketing” really fades away. This is a lesson long known in major consulting firms.

Let’s compare the law firm situation to that of major consulting firms. If you ask consultants about marketing and how they get business, they will give you a strange look. Consultants must become experts in their discipline and in an industry. A logistics consultant in retail who excels at what she does becomes a person in demand. Clients want to work with her because she brings something to the table they cannot develop internally. In addition to her in-depth knowledge of her field she has in-depth knowledge of the client. Many consultants know more about how the clients do business than the clients themselves. But, the consultants also have the benefit of breadth. They see the world across many clients and can offer insights without betraying confidences.

Not many lawyers can say the same about what they do. Many partners know very little about the businesses of their clients (and taking time to learn would reduce billable hours). Those same lawyers also do not excel at their craft. They may be competent or even above-average, but they are not seen as the leaders in their field. Their names are not shared among general counsel when the question comes up, “who is the best?” As a result, firm marketers must push these lawyers services on clients.

Building Excellence

A few firms (Quinn Emanuel) have a culture of excellence. Often we see it in smaller firms, where the leaders of the firm can control quality by keeping the number of lawyers low. Bartlit Beck is a smaller firm that hires a disproportionate number of US Supreme Court clerks. The firm uses small teams to handle matters and given its overall small size there is no place to hide for those who provide less than stellar services. Given its size, controlling quality is much easier. When a firm has 2,000 or more lawyers, there are plenty of places to hide and no one has a consistent, clear standard of firm quality.

This isn’t an argument for small firms or large firms. It is an argument that failure to demonstrate excellence in craft is a sure way to lose out in the competition for clients. The volume of legal work going to outside law firms is shrinking. Law departments are keeping more work to themselves, or channeling it out to law companies. Law firms must find something on which to hang their hats. Very few firms have a grasp of technology. The same is true for how to use project management. Fewer still firms understand processes and process improvement. While one would think that excellence in craft fits well with firms who think of themselves as among the best, apparently the effort it takes the individual lawyer to build that excellence is sparsely distributed. Firms, hungry for hours, are willing to overlook mediocrity.

So what should we do? I recognized many of these ideas have been raised before, but it is worth raising them again:

1. Firms should recognize that paying for time versus paying for value is becoming a thing of the past. A mediocre lawyer can do well in an environment where the client pays for time. The mediocre lawyer will spend more time on an issue, generating more revenue for the firm. But when the client pays for value, the firm should prize the lawyer who is excellent and can get to the answer quickly. Firms should accelerate the move from billable hour to value.
2. Firms should recognize that clients today increasingly look to firms for value they can’t get elsewhere. A law company may be very efficient at handling contracts, policies, and other volume materials. But law companies still are not geared toward providing creative, cutting edge solutions based on deep understanding of the law. This is where law firms should excel. They should provide not only reactive, “here is how we fix your problem” advice, but also “here is how we prevent the problem” advice. This is where excellence comes into play. These are the types of services that will distinguish firms of the future.
3. Firms should support excellence — indeed drive for it. Excellence requires more than reading all applicable cases, statutes, and regulations. It requires doing research to understand the “why” behind how a field operates. Top consulting firms have long recognized that to be excellent, their consultants had to understand an area so well they could develop new theories and deeper understanding of how the area ticked. Law firms should invest in this deeper understanding of law and help their lawyers become excellent at developing the law, not just applying it.
4. As we often hear today, lawyers need to become fans of data. The age of talking to a lawyer who gives an opinion based on the 10 or 15 cases she has handled is past (or it should be). Clients should recognize that advice based on such weak datasets is meaningless and should call out their lawyers for basing opinions on it. Excellence means knowing more than the average player. It means having that depth and breadth of knowledge that is hard to match. Law firms need to invest in building that knowledge within an area their lawyers, or recognize that they have little to offer clients and move on to other areas.
5. Law schools should support the move away from puffery (I’ve talked about puffery before, as has Casey Flaherty) and to substance. Law journals should be turned into peer review journals. That does not mean kicking students off the journals. It does mean that those knowledgeable in the field of the author should sign off on whether an article is worth publishing. Today, law journals contain far too much drivel and far too little substance.
6. Law schools should involve students in genuine scholarship. If law is to remain a graduate degree, then let’s treat students as graduate students. Learning how to do substantive, quality research should not be relegated to a few hours during the first year of law school. Doing so has stunted the profession (practitioners are left floundering).
7. Let’s demand excellence from law students. This will be challenging and will take time. Many students come to law school ill-prepared in the basics (readin’, writin’, ‘rithmatic). Expecting those students to become excellent over three years may be asking a lot of both the students and the schools. Nevertheless, it is a worthwhile goal.

To be a high-end player, you must offer that which cannot be gotten elsewhere. Today, most law firms offer only that which can be gotten everywhere. The era of mediocre lawyers succeeding and earning high incomes is coming to a close. To survive this era, you need to develop excellence in craft and be able to demonstrate that excellence to clients. Welcome to the new competitive frontier.

Ken is an author on innovation, leadership, and on the future of people, processes, and technology in the legal industry. He also is an adjunct professor and Research Fellow at Michigan State University’s College of Law. You can follow him on Twitter, connect with him on LinkedIn, and follow him on Facebook.