Deep thinking on the theory and practice of law

Ken Grady’s exercise in deep thinking on the theory and practice of law should be read, nay imbibed, by every practicing and aspirant lawyer, law firm leader, law school teacher and all others who care about the role of lawyers in society. Remember Philip Wood’s riveting The Fall of the Priests and the Rise of the Lawyers? If Ken and his kindred spirits are not heard, we may well be reading the sequel, The Fall of the Lawyers and the Rise of the…     

A few days ago, Dan Rodriguez and I had a brief Twitter exchange about theory and the practice of law. For those who don’t know, Dan is the Dean and Harold Washington Professor at Northwestern University Pritzker School of Law, and someone it pays to listen to as he is a very bright guy.

In our Twitter exchange, I said that it was “fine” to have a theory and Dan said it was “necessary”. He also threw in the comment that perhaps the lack of theory in the practice (something I said I had witnessed) was responsible for the mess we are in today in the legal industry (I agreed with him on that last one). On the “fine” versus “necessary”, we agreed to disagree.

As I thought about our tweets, I think we both were correct, but there is a more important point at play. I still think I was correct in that many lawyers practice without relying on a theory (hence, theory isn’t a necessary part of practicing). I think Dan was correct about the lack of theory partially driving our legal industry mess. The important point at play is the one we agreed on: the lack of a theory supporting the delivery of legal services has contributed to the mess. So whether you believe theories are or are not necessary, they should be.

Law Is Not A Theory Wasteland

If you are a law school graduate, then you know that law does not suffer from a lack of theories. The theories cover everything. I started law school learning the relational theory of contracts. Tort law included many theories about why this person or that organization should be held responsible for a harm suffered by another. Constitutional law is covered with theories. They address the scope of the First Amendment to what place the Constitution itself plays in deciding issues. There also are, of course, theories of jurisprudence. Should we adhere to formalism, pragmatism, or some other form of “ism”?

This summary does not even scratch the surface of the many theories that run through and around law. But, there is a gap that has existed for a long time. We don’t have a theory or theories that underlie how we deliver legal services. This “how we deliver” field has been left to each lawyer to work out on his or her own, perhaps with the help of mentors.

As Peter Lederer, co-founder of Law Without Walls, noted in a recent tweet exchange, many decades ago law firms took on the responsibility of teaching their approach to practicing law. Cravath, for example, would take the first two years of an associate’s tenure and rotate the person through major departments. Along the way, Cravath partners would educate the associate in the “Cravath way”.

With the advent of the salary wars (an annual event that Cravath kicked off in the 1970s), law firms moved away from teaching as they focused on recouping their salary investments through billable hours. One could argue that before the salary wars, firms had theories about how to practice law and taught their theories to new associates. Those theories partly distinguished the firms. The Cravath theory about how to practice was different from, say, the Simpson Thatcher theory (though they probably overlapped substantially).

With the decades of salary wars, increased focus on the billable hour, and the increased lateral movement of partners, training in general and certainly training on a firm’s theory of how to practice (assuming a firm still had one) went by the wayside. Indeed, how was a firm constantly being reconstituted by an influx of partners from other firms and an outflow of partners raised in the firm even going to define its theory of practice?

Our Mess

That leads us to today where, with the possible exception of a few large firms and maybe a broader set of smaller firms who continue to abide by the “we promote those lawyers trained here” philosophy, how to deliver legal services is a free for all. Enter the so-called “New Law” areas of project management, process improvement, and other elements of operational excellence. The argument is that these areas will bring order to the free for all and relief for the clients.

One would think the addition of these areas would help bring order to chaos. One would be wrong. Because those adopting these areas do so without the benefit of a theory underlying what they are doing (or, most often, an understanding of the theory behind the area they are adding), chaos is not subdued. Rather, chaos in the profession is increased. Now, we have firms adding to the confusion by making a hash of these New Law areas.

Let me revisit the comment “without the benefit of a theory underlying what they are doing.” For some reason, and despite the abundance of theories in substantive law, the legal community has assumed that little or no theory attaches to operational excellence areas. Each area exists not as something which requires understanding a theory that supports the application, but as an orphaned set of “to dos”. Firms and individuals go off and try to implement the “to dos” and realize, to their amazement, that their operational excellence efforts yield less than expected and require more work than anticipated.

A brief example may help elucidate the problem. I was at a workshop where a partner from a major firm was speaking. After a long and successful career, the firm had asked the partner to become the “pricing partner” (pricing is considered a New Law area of operational excellence). Other partners would seek his advice on how to structure non-traditional (i.e., other than billable  hour) arrangements.

When the partner spoke, he explained that after handling his new responsibilities for a few months, he decided that he needed a theory of pricing so he developed one. Admirable. Except, he didn’t consult the abundant literature on pricing. He was oblivious to the fact that pricing is an area that has received serious theoretical and applied attention. Pricing was, in fact, not a wide-open field that no one had considered. There is much in the way of guidance that could have helped him and his firm. He just decided that he was the first to ask the theory question and so he created one. He also had no plans to test his theory, he simply put it into play.

This is what I see happening over and over again in law. With little or no understanding of any theory behind an area of operational excellence, a law firm jumps in and tries to implement something in that area. Progress is slow and there are many failures. People are confused, many lawyers say “I told you so” and clients are frustrated. The firm just assumed that it could spin out expertise in an area without any real understanding of the area.

On the law school front, there isn’t much help. Rather than adding faculty with the appropriate background to teach operational excellence in professional settings, the schools rely on individuals with very little gas in the tank. They can’t point to decades of implementing operational excellence in law (or even another professional field), they don’t have academic qualifications to teach in the area, and their scholarship is nil. They create more confusion.

Now, I’m not arguing the pendulum needs to swing to the other extreme. We don’t need scores of theoreticians filling up academic journals with esoteric articles. We also don’t need them teaching law students (or business students) interesting but ultimately meaningless esoterica about operational excellence in professional settings. We do need, however, a grounded approach to using operational excellence in law, just as there are grounded approaches in business. We need theories to test actual practices against so that we can develop best practices and consistent ways to improve. We need, in essence, to treat operational excellence in law with the same respect it gets outside of law.

There is another reason for raising our game when it comes to operational excellence. Law is not just substantive ideas, nor is it just executing on those ideas. The two parts are intertwined. What we want to do with law is affected by how we do it, and how we plan to execute on our ideas affects the substance of the ideas. The theory of pragmatism in law and the theory of pragmatism that underlies lean thinking are twins separated about 50 years after birth. Today, they are coming back together. Understanding what that means and how it can be used to improve the practice of law benefits all.

Introducing Theory To Legal Operational Excellence

I think Dan Rodriguez was right if I make a slight modification to his statement. Theory is necessary for the practice of law if we want orderly, well thought out, tested, and highly productive approaches to practicing law. Theory is not necessary if we want the mess that exists today.

As we transition to new ways of practicing law, we should respect that these new ways need theoretical underpinnings just as much as the substantive law to which they are tied. We should bring into academia and into the practice those who understand the theories and can help us evaluate and implement best practices. We should treat the practice of law as a profession and give it the respect we want others to give it. Or, we can continue throwing undertrained, inexperienced individuals at students in the classroom, lawyers, and clients, and hope that the mess will somehow sort itself out. As to the latter approach, don’t expect clients to stick around and see the results of the experiment.