As we pass the year’s mid-point, I’ve had the good fortune to conduct more site visits at law firms and law departments. And, as always, I’ve attended an obscene number of conferences [at one right now]. I’ve seen quite a bit and heard even more. Overall, I’m optimistic. An admittedly skewed sample of major industry players are moving in directions I applaud (confirmation bias is only a few degrees away from social proof). But the inescapable conclusion from gaining visibility into so many organizations is that everyone—and I mean everyone, me included—has plenty of room for improvement. Those who refuse to concede their imperfections, even in private, are doing the industry a disservice.
An Obvious Point and a Corrosive Minority
There is always room for improvement. This should be an obvious point. Yet I find myself performing increasingly more emotional labor. I reassure people that where they work—their goat rodeo—is not nearly as far behind their peers as the legal press and conference propaganda leads them to believe. Sure, it’s a clown show. But so is everywhere else. Some just won’t admit it.
Indeed, the incessant triumphalism from certain corners has meant I’ve had to commit myself to an intense extraocular exercise regimen lest I suffer a repetitive stress injury from my compulsive eye rolling. I cannot fathom how so many people, especially in-house, believe their own bullshit.
Say the damn words because you must. When representing your organization in a public forum, it is rarely permissible to air dirty laundry. With ghostwriting, I’ve navigated enough content through corporate communications departments to appreciate the prerogatives behind conference happy talk. But it is disappointing when, afterwards, at the bar, several drinks in, there is no veneer to drop.
Which isn’t to say that law departments and law firms aren’t doing things they should be proud of. They are. But dim the halo effect just a tad there, Chuck, because turned all the way up, it’s blinding.
While we are all sinners, I reserve particular disdain for a corrosive minority of in-house professionals in large law departments. These snoutbands are dismissive and derisive of just about everything. If it is worth doing, they’ve done it—often long, long ago*—or are doing it now. Any initiative that does not match their precise program is derivative or dumb. And when you challenge them, they whip out their ace card: the brand. I work at [Big Name Co.]. [That thing someone else talked about] couldn’t possibly be useful to us because of our sophistication, scale, scope, complexity, what not, and what have you.
This usually works for them. I’ve witnessed many smaller department personnel, proud of some initiative they’ve undertaken, quickly cowed by the confident dismissals of some mope from a global brand. They recognize positional authority—the speaker’s shop is one or two orders of magnitude larger. They are also painfully aware of their own shortcomings. Their goat rodeo makes them hesitant to say too much, especially in the presence of someone poised to punch down.
I am not naturally deferential. And I have at my disposal counterexamples from similarly sized companies. Challenging the pronouncements of those who regard themselves as beyond reproach is bit of a hobby. Though it typically leads the conversation down the unproductive path of special pleading. Ill prepared to engage on merits, these stuffed shirts retreat behind unexaminable specifics—their GC, their finance department, their regulatory framework—that supposedly render their circumstances completely unique and beyond the comprehension of any outsider. Fair enough. They are not to be convinced. But that’s not my objective. I aim to place their self-serving decrees in the appropriate, limited context.
This minority falls into two primary camps. One is my origin story. The conference-only superstar is a common breed. They live for conferences where they are treated as the omnipotent avatar of their global brand. In reality, they are a tiny cog in a large machine. Or, as David Cambria has termed it, “a non-core function of a non-core function.” Temporarily freed from the bonds of their usual subservience, they derive immense psychic pleasure from being able to hold forth with utter self-assurance. The last thing they can tolerate is being challenged. Conceding they lack the authority to accomplish something (or much of anything, really) would break the spell. So they pompously pretend it need not be done. Then they, and their fragile egos, quietly return to their prosaic day jobs.
Less common in the wild are the power brokers who have succumbed to the intoxicating effects of the innovation illusion. They have real authority, and there is a long line of successful partners, consultants, and vendors waiting to kiss—uh—the ring. In aggregate, they are probably more prevalent than the conference-only superstar. But they are less likely to be at conferences in the first instance. Even in attendance, they are disinclined to mingle with hoi polloi.
For me, this latter group ranks second only to inertia in impeding change in the legal market (more than guild-protecting regulations, more than complacent law firm partners). The ceaseless conventionality of high-ranking, self-styled ‘innovators’ has a stealth dampening effect on efforts to exercise authority in the service of continuous improvement. They are the secret agents of the status quo. They traffic in suppression and sabotage while taking up the mantle of change agent.
We absolutely need pragmatists. But we are often stymied by retrogrades masquerading as revolutionaries. These are the people to whom well-meaning but preternaturally busy GCs turn for assurances. They stroke the GC’s ego with gentle affirmations that minor, cosmetic, painless tweaks will ensure the legal department continues to be as glorious as the corporate empire it serves.
Great Corporation ≠ Great Legal Department
Pride goeth before destruction, and an haughty spirit before a fall. I can’t wait for these dilettantes to get their comeuppance. But I’ll probably have to. They are unlikely to ever pay a professional or social penalty for their preening mediocrity. The uncomfortable truth is that great corporations generally do not need great legal departments. A great legal department helps. But most great corporations can survive with a serviceable legal department. There is an unsettling prevalence and persistence of C-grade talent in the legal departments of A-level corporations. Both the ‘talent’ and the corporations will probably be fine. And, if they aren’t, the mismatch is unlikely to be the genesis of their downfall.
The inverse, unfortunately, is also true. You can have A-grade legal talent who support C-level corporations. These virtuous souls may have stood up the finest, most forward thinking legal department we’ve ever known. But they toil in obscurity. And, despite their best efforts, the enterprise might still go bankrupt. Or maybe their company gets acquired by some global behemoth whose lumbering legal department absorbs and quickly dismantles superior but smaller corporate siblings. Might = Right.
Some legal departments are much better than others. But the strength of the associated brand offers little informational value as to who is good. We should stop presuming that personnel from large legal departments know what they are talking about by virtue of the logo on their business card. This tick is all the more dangerous as the proliferation of legal operations roles (temporarily) dilutes the talent pool—the inexperienced are more easily swayed by unearned prestige.
That said, there is also A-grade talent at A-level corporations doing A+ work they don’t really share. This comes in two flavors. The first is where the corporation doesn’t permit press that distracts from the brand. It matters not how spectacular Widget Corp’s CLM implementation is. Widget Corp only authorizes articles and public speaking that promote the sales of widgets. Alternatively, ancillary topics can be put on display but only when they bathe the corporation in such a glowing light that it is hard to tell whether the legal department implemented CLM or cured cancer.
I’ve got nothing but affection towards the individuals doing the work. And I see the merit in the corporations’ PR edicts. But the obsession with optics affects the market in which we operate. With the clandestine activity, we lose some key, validating social proof. While the ‘big reveal’ warps perceptions of replicability—the innovation is presented as so pristine and well executed that it is out of reach of mere mortals.
Content with Mediocrity
It bears repeating: every institution, no matter how venerable, looks like a goat rodeo from the inside. Though it’s not always the same show.
A big company might not be pursuing some initiative you consider worthwhile because their law department is content with mediocrity. The many sins of their insufferable ordinariness, however, are smoothed over by a profligacy that is still a rounding error on the corporate bottom line. There are no feedback loops or transparency mechanisms to reveal just how depressingly pedestrian they are.
Or they refrain because they, too, are resource constrained. Even the most well-heeled legal departments feel like they are holding it all together with duct tape and toothpicks. The undertaking is simply not a priority at this time because resources are allocated elsewhere. Or it would be a priority if it was not cost prohibitive due to interoperability/migration/political issues from a legacy system that lingers from their last attempt (almost nothing is ‘new’)—the larger and older the law department, the more relics that haunt them.
Or maybe they do it but not well. If the stellar insights coming from AdvanceLaw on panel programs failing to deliver (here, here) have taught us anything, it is this: I was right. But, more importantly, they remind us of an important truth: many law department initiatives fail to realize their potential benefits because of poor design and lack of follow through—we don’t put in the necessary work, before or after.
Meanwhile, some other big company law department is doing that thing quite well, just not as seamlessly as they need the world to believe (if they share at all). Moreover, even the great departments are a mixed bag. Map what they do onto any comprehensive maturity model, and you will find they excel in some areas while merely treading water in others. The thing they are good at is an outlier—a high-performing department presenting only the highlights of an initiative that is at the extreme end of what it does well. We reach erroneous conclusions when we extrapolate from outliers.
Indeed, if I was given plenary authority over a large law department tomorrow, and you visited me five years hence, the best I could aspire to is that last category. My law department would still be a goat rodeo. We would remain a disaster relative to our target operating model. But, if I did my job, we would have a target operating model (few departments do) and be materially closer to it than when I started. At no point would I have all answers. Even if I did, I would never have the necessary team, time, attention, or money. Also entropy.
I spend a fair amount of time providing comfort: everyone else is a mess, too. And it’s (mostly) fine. This is not a license for complacency. It is about alleviating the suffocating sense of futility that accompanies any attempt to sustainably change organizational behavior. Knowing you aren’t alone. Internalizing that better is better, even if it is never perfect. Coming to terms with the fact that there is no finish line.
Everyone makes tradeoffs. We’re all a bit frayed around the edges. We should talk about that more.
Alright, enough of my blather. If you want material on legal innovation that rewards your attention, I commend to you the incomparable Dera Nevin (here, here), peerless Ivy Grey (here, here), and inimitable Jae Um (here, here, here).
– Casey
*Too obscure to do in the middle of a post even this stream of consciousness. But constant references to some innovation from long, long ago always calls to my mind the movie Brain Candy by Kids in the Hall.
There is a recurring joke where the CEO of a pharma company references his invention of their signature product, Stummies. His obsequious corporate minions are then obligated to chime in with ritual praise of Stummies and the CEO’s past heroics. The denouement of the film includes someone finally responding, “Oh, f*ck Stummies!” It’s a comedic catharsis in a thoroughly silly movie well worth your time if your sense of humor has an absurdist bent.
Whenever someone is prattling on for the umpteenth time about something they did many years ago, I am tempted to exclaim, “F*ck Stummies!” Which, of course, I don’t. Like most people, I am braver on the internet than in real life. Beyond that, I derive less pleasure from being an a-hole than you might imagine. For all the invective, I take a person-in-the-arena view.
This is not to diminish past accomplishments. Very little is ‘new’. We should all be students of what has worked elsewhere and be grateful when those who’ve done it share their hard-won insights. But there is a particular type of person who can steer any conversation (What do you want for lunch? Have you seen Barry on HBO?) back to some initiative they completed a decade+ ago. The first time, it’s fascinating. The tenth time, it’s not only tedious, it is also clear that there is only one conversation they are interested in having.
To give a concrete example, there is a particular person from a large corporation (I know they don’t read me) who is forever pointing out they were among the first companies to deploy ebilling. Beyond the repetition, two issues. First, if something you did more 15 years ago is your go-to evidence for your legal department being ahead on innovation, that’s a bad sign. Second, I’ve spoken to this person’s former colleagues. Their ebilling solution has been showing its age for quite some time. They are in desperate need of an upgrade. But the migration is such a heavy lift that they can’t muster the internal will. That is, the real headline is: Big Company Trapped By Old System. Not that anything like the truth would get in the way of bloviating. I’m doomed to hear this story many more times.
F*ck Stummies!
