September 2009

  There is no bigger fan of Edge International than yours truly, and I’ve written before about my admiration for Edge’s outstanding work.  I’ve also written of my admiration for Jordan Furlong, author of the brilliant Law21.ca blog.  Today I learned that Jordan has joined Edge’s outstanding team.  It’s like adding Wayne Gretzkey in his prime to the team that already was the best team in the league, or adding an all-star to a team of all-stars.  Great move, my friends.

 

 

 

Continue Reading WOW! Jordan Furlong joins Edge International!

Ron Baker posted a long critique of the discussion on Lean.  I wanted to comment on some of his arguments, so I have copied the post its entirety.  My comments appear in caps within the body of Ron’s post below.  Forgive this unorthodox approach, but it is the only way to create the proper context without a lot of unnecessary movement from one post to the next.  Here’s Ron:

 

Pat Lamb posted on Lean Client Service, which inspired me to post a comment.

Then Pat replied in another post.

This led to another post, incorporating several comments from Legal On Ramp’s discussion board.

The debate is critical, and regular readers of VeraSage already know how much ink and mind power we’ve devoted to this topic.

Attacking efficiency is the equivalent of criticizing motherhood and apple pie, so my position is highly contentious. I believe this is good, since we only learn from people we disagree with. And, it illustrates how we have not yet come to grips with the consequences of no longer being an industrial/service economy, but rather a knowledge economy.

In that spirit, I thought it necessary to comment on Pat’s latest post, while expanding the discussion.

Here is my letter to Pat.

Hi Pat,

Fantastic discussion, thanks so much for provoking this much thought on what I consider a critical issue for professional knowledge firms.

We have two problems with this debate. The first is a linguistic issue. We all seem to be using a somewhat different definition of efficiency and effectiveness.

We believe all change is linguistic, so we should agree on terms. For example, you say in your post that I am one of the “leading thinkers on the issue of value billing,” but we at VeraSage don’t use the term “value billing,” since billing is done in arrears, whereas pricing is done up-front, before the work is started. There’s an enormous difference in these two approaches. [I APPRECIATE THE DISTINCTION AND APOLOGIZE FOR THE ERROR.  BUT TO ME, THE CRITICAL ELEMENT IS THE PRICING AND SUBSEQUENT BILLING MUST SHIFT TO THE LAWYER OR OTHER KNOWLEDGE WORKER THE NEED TO PRODUCE THE OUTPUT AT THE LOWEST COST IN ORDER TO MAXIMIZE PROFIT MARGINS.]

We also don’t believe law firms are “professional service firms” but rather “professional knowledge firms (PKFs),” terminology more in line with Peter Drucker’s famous definition of knowledge worker and knowledge economy. [TO ME, A DISTINCTION WITHOUT A DIFFERENCE]

So let me begin by defining how I am using the terms efficiency and effectiveness, which I take from Peter Drucker:

* Efficiency focuses on doing things right.
* Effectiveness concentrates on doing the right things.

Now many people argue that both of these are important, and up to a point I agree. However, past some point—which we argue occurs sooner on the graph in a knowledge firm than, say, in a factory—the two become mutually exclusive. I can cite hundreds of examples where a decrease in measured efficiency still leads to an increase in effectiveness.  [IS YOUR POINT THAT WE WANT TO DO THE RIGHT THINGS INEFFICIENTLY?  IF SO, I BEG TO DISAGREE.]

However, I can’t find many examples of where an increase in efficiency has increased effectiveness (as defined here). I know Fred Bartlit says that “increased efficiency almost always results in increased quality,” but quality is not necessarily effectiveness as I’m using the term here. One could make an incredibly high quality cement life jacket, but it wouldn’t be very effective (this crack was made by Tom Peters with respect to ISO 9000 standards).  [I THINK THIS IS WHERE THE PARSING OF WORDS GETS EXTREME, RON.  FRED AND I LIVE I A WORLD WHERE PEOPLE KEEP SCORE AND NEITHER OF US IS MAKING CEMENT LIFE JACKETS.  WE ADVOCATE, AND LIKE IT OR NOT, IT IS AN EVERYDAY PART OF THE BUSINESS WORLD.]

Peter Drucker believed that a business wasn’t paid to be efficient; it’s paid to create wealth for customers. A business could be highly efficient at doing the wrong things. Examples abound: buggy whip, dot-matrix printer, slide rule, and typewriter manufacturers, etc, all models of efficiency before they were decimated in a gale of creative destruction by more effective technology. [FRED AND I, AMONG OTHERS, HAVE USED THE BUGGY WHIP MAKER ANALOGY TO DISCUSS THE  BIGLAW MODEL.  BUT THE PRODUCT BEING SOLD BY LAWYERS IS RESULTS–SOLVING CLIENTS’ PROBLEMS.  I DON’T KNOW OF A CLIENT WITH A PROBLEM WHO WOULD ARGUE THAT HER LAWYER’S ABILITY TO ACHIEVE A RESULT AND MAKE THE PROBLEM GO AWAY IS AN ANTIQUATED BUSINESS.]

In fact, a company at the apogee of their measured efficiency is probably in a perilous position, which is why Google allows its professionals to spend one day per week working on projects that excite them. This is not very efficient per your timesheet or billable hours; however it has led to many of Google’s innovations—Gmail, Google Earth, Google Books, etc. Other companies such as 3M and Gore have similar strategies.

This is why Peter Drucker wrote The Effective Executive, and not The Efficient Executive.

But let’s get back to efficiency.

What, Exactly, Is Efficiency?

Efficiency is always a ratio, expressed as the amount of output per unit of input. Mathematically, it seems straightforward, as if there was one widely agreed upon definition of the components of the numerator and denominator. In an intellectual capital economy, however, it is a conundrum. [EFFICIENCY DOES NOT ALWAYS NEED TO BE MEASURED, BUT ARE YOU REALLY ARGUING THAT DOING HIGHQUALITY WORK FASTER AND CHEAPER IS NOT A GOOD THING?]

Take the denominator in the ratio. Which inputs should be included? If we are dealing with wine, we could count the costs of the grapes, the bottles, corks, etc., none of which would help us define—let alone value—the final product. As they say, it is much easier to count the bottles than describe the wine.

If we were dealing with Rembrandt’s efficiency, we could sum up the cost of paint, canvas, brushes, and even the amount of labor hours spent plying his craft. Would there be any relationship to the final value of the output?

We can calculate how many surgeries the cardiologist performs in a given number of hours, but it doesn’t tell us anything about the quality of life for the patient.  [BUT A DOCTOR DOESN’T WASTE TIME NEEDLESSLY.  SHE HAS OTHER LESS EXPERIENCED SURGEONS CLOSE, NURSES DO THEIR WORK, TECHNOLOGY ADVANCES PLAY KEY ROLE, ETC.]

Was Einstein efficient? How would you know? Who cares?

Firms have learned costs are easier to compute than value, so they cut the costs in the denominator to improve the efficiency. This is the equivalent of Walt Disney cutting out three of the dwarfs in Snow White and the Seven Dwarfs in order to reduce the inputs, thereby making the resulting ratio look better. Since Snow White contained over 2 million painstakingly crafted drawings, this reduction would have been quite efficient—but hardly effective. The Two Little Pigs probably would have been more efficient, but nowhere near as effective.  [THIS IS A GREAT EXAMPLE THOUGH.  TOY STORY AND OTHER COMPUTER GENERATED CARTOONS ARE JUST AS GOOD BUT PRODUCED AT A FRACTION OF THE COST, ALLOWING THE PRODUCERS TO INVEST MORE AT THE IDEA DEVELOPMENT STAGE AND STILL MAKE MORE MONEY.]

The fact of the matter is, we do not know how to measure the efficiency of a knowledge worker. And this is true for a very fundamental reason, which leads to the second problem with this debate: The Grand Fallacy—that is, the idea that there is such a thing as “generic” law firm efficiency.  [LEAN IS ABOUT LOOKING AT PROCESSES TO SEE WHAT VALUE THEY PRODUCE FOR CLIENTS.  ARE YOU SAYING THAT WE SHOULD BE INDIFFERENT TO THE USE OF TECHNOLOGY IN DOCUMENT REVIEW FOR EXAMPLE, EVEN THOUGH STUDY AFTER STUDY HAS SHOWN IT PRODUCES EQUIVALENT RESULTS AS HUMAN REVIEW FOR A FRACTION OF THE COST?]

There’s No Such Thing As Generic “Efficiency”

Efficiency cannot be meaningfully defined without regards to your purpose, desires, and preferences. It cannot simply be reduced to output per man-hour. It is inextricably linked to what people want—and at what cost people are willing to pay.  [EFFICIENCY, AT LEAST IN THE LAW, IS GREATER OUTPUT–RESULTS.  TO THE EXTENT RESULTS CAN BE PRODUCED FASTER AND AT A LOWER COST, THE LAWYER HAS ADDITIONAL TIME TO INVEST IN OTHER PURSUITS OR OTHER CLIENTS.]

Consider the example of a hammer in a poor country. It’s likely to drive more nails per year, since it’s most likely shared among more people and sits idle less of the time. But that does not make the poor country more efficient; it just proves that capital tends to be scarcer and more expensive in those countries.  [SO WE’D RATHER HAVE LARGE NUMBERS OF EXTRA COMPUTERS FOR EXAMPLE, RATHER THAN TRYING TO PURCHASE ONLY THAT WHICH IS NEEDED?  WE LIKE TO HAVE EXTRA BODIES AROUND FOR THE RARE TIME THEY ARE NEEDED RATHER THAN LOOKING FOR ALTERNATIVE APPROACHES?]

During the Cold War, the old Soviet Union used to boast that the average Soviet box car moved more freight per year than the average American box car. Yet this didn’t prove they were more efficient. On the contrary, it proved that Soviet railroads lacked the abundant capital of the American industry and that Soviet labor had less valuable alternatives to engage in than their American counterparts.

Your automobile is not very efficient, since it’s idle a majority of the time. So what? When you want to go somewhere, it is incredibly effective, since it meets your purposes at a price you’re willing to pay. (I am indebted to Thomas Sowell, and his masterful book, Basic Economics, for these examples).

Princeton economist William J. Baumol asks this thought-provoking question: How would you go about increasing the efficiency of a string quartet playing Beethoven? Would you drop the second violin or ask the musicians to play the piece twice as fast?  [NO, BUT YOU WOULD LOOK AT THE COST OF TRANSPORTING THE MUSICIANS FROM ONE ENGAGEMENT TO THE NEXT, OR THE COST OF PROCURING THE NECESSARY INSTRUMENTS FOR THESE PEOPLE TO PLAY THEIR EXCEPTIONAL LEVEL.  YOU ARE LOOKING AT THINGS FAR TOO NARROWLY.  I DON’T ADVOCATE USE OF LEAN TO CHANGE THE MANNER IN WHICH A LAWYER TRIES A CASE IN COURT, BUT THERE ARE SO MANY OTHER ASPECTS OF PRACTICE THAT DO LEND THEMSELVES TO THIS ANALYSIS.]]

Adam Smith explained how the specialization and division of labor were the major causes of productivity increases and the creation of wealth. However, even some of Smith’s insights are not effective in a knowledge environment. Shakespeare could not specialize in writing the verbs while a colleague wrote the nouns of his many works, even though this would, no doubt, increase “efficiency,” at least given the way firms currently measure that statistic.

Judgment vs. Measurement

Efficiency is always a measurement. Effectiveness, on the other hand, is always a judgment, which is far more important in a knowledge environment. Some of the comments on your blog post support this position, especially Fred Bartlit’s.

There is no generic way to “measure” the quality of legal output; it requires a judgment, based on the results it creates. This is one of Drucker’s major insights about the difference between a factory worker and a knowledge worker. If I’m placing tires on an assembly line it is much easier to measure my quality (and defects) than if I’m a lawyer writing a crappy brief, which will only be discovered by a judgment, usually from another lawyer.

I was hospitalized last year. My surgeon ordered a CAT Scan. The procedure was done very efficiently, as measured by outputs and inputs. I was in and out very quickly, comfortable, etc.

However, when my surgeon saw the scan results he “judged” the radiologist screwed up, didn’t scan far enough down my thigh. The measured efficiency could not inform him of this defect—it had to be judged. This defect led to a much longer hospital stay and other serious complications.

The scan was highly efficient, but it was nowhere near being effective.

I’m all for process, and you mention audits. However, judgment is still superior. Take Enron. The auditors followed the “processes” and the “checklists.” What they didn’t do is apply professional judgment by asking “Do these financial statements reflect the underlying economics of this entity?” The result was an efficient audit that was entirely ineffective. [RON, YOU WRITE AS IF PROCESS AND JUDGMENT ARE MUTUALLY EXCLUSIVE.  THAT MAY BE TRUE IN THEORY.  I CAN ASSURE YOU, HOWEVER, THAT IN THE WORLD MY CLIENTS OPERATE IN, THEY ARE INTEGRATED. YOU HAVE TO PROVIDE GREAT JUDGMENT AT A LOW PRICE.]

Anthony Kearns makes an excellent point when he says: “In law…it will be difficult if not impossible to determine in advance where efficiency in process can be achieved without unsatisfactory compromises in quality.” [AND WITH ALL RESPECT TO MY FRIEND ANTHONY, I ONLY NEED TO POINT TO THE WAY DOCUMENTS ARE PRODUCED AND REVIEWED TO ILLUSTRATE THE FALLACY OF THE CLAIM.]

This is another way of stating what economists have known for centuries: there is no generic efficiency without respect to purpose, and what you are willing to pay.

Anthony also makes another excellent point about expertise driving efficiency (I would say it drives effectiveness), and this supports my argument even more.

When we are undergoing education, we aren’t very efficient as measured by a ratio of outputs divided by inputs. New skills take time to learn, and beginners make tons of mistakes. If all we cared about was efficiency we’d never educate our team members. But the only way a knowledge worker can become more effective is through education, so the cost of less efficiency is a price worth paying.

Scott Irwin’s formula is interesting: Effectiveness + Cost Control = Efficiency.

But I reject this, for the many reasons cited above. Too many companies focus on cost control and efficiency at the expense of effectiveness, which I believe is dangerous. [RON, I JUST THINK THE MAJORITY OF PEOPLE ARE GOING TO REJECT YOUR ARGUMENT THAT WE SHOULD BE INDIFFERENT TO COST.  NO ONE CAN AFFORD THAT THESE DAYS.  BEING FOCUSED ON COST TO THE EXCLUSION OF RESULTS IS NOT GOOD, BUT AS MENTIONED, THEY ARE NOT MUTUALLY EXCLUSIVE.]

Gordon Bethune, former CEO of Continental Airlines, made this very point in his book, From Worst to First. He said Continental’s management culture was totally focused on driving down cost per passenger mile, by piling more people into the planes like sardines, cutting down beverage sizes, taking out pillows, blankets, and magazines, etc. [“TOTALLY FOCUSED”  MY POINT EXACTLY,  IF YOU FOCUS ON ONE OR THE OTHER TO THE EXCLUSION OF THE OTHER, YOU LOSE.  BOTH NEED TO BE PURSUED.]

He wrote “you can make a pizza so cheap no one wants to eat it, and you can make an airline so crappy nobody wants to fly it.” This cost mentality was precisely why Continental filed bankruptcy twice in one decade before Bethune took over and began to focus on effectiveness.  [BUT EVEN THE BEST AIRLINES PAY ATTENTION TO COST, BUYING OIL WHEN IT IS CHEAPER, FOR EXAMPLE, OR HEDGING INCREASED OIL PRICES.]

Efficiency in a law firm, in and of itself, is not a competitive advantage. It’s the equivalent of having restrooms. If your firm isn’t using the latest technological tools that is incredibly inefficient; but if it is using those things, so what? All of your competitors are too.  [“IN AND OF ITSELF.”  AGAIN, YOUR OWN WORLDS SHOW YOU ARE CASTING THIS AS EITHER/OR WHEN I CERTAINLY DID NOT AND NO BUSINESS PERSON I KNOW OR HAVE HEARD OF DOES EITHER.]

The differences in firm revenue and profit cannot be explained by efficiency, only effectiveness in customer service, as well as the ability to create, communicate and capture value. Efficiency is a table stake—the minimum you need to be in the game.

Competitive advantage is built on effectiveness, not efficiency.

It’s not very efficient for Nordstrom to have pianos in its stores, as it lowers sales and profit margin per square foot (the efficiency metric for retailers). It is, however, incredibly effective to serenade your employees and customers everyday, creating an ambiance they want to come back for.  [BUT THEY DO HAVE PIANISTS ONLY DURING PEAK HOURS, NOT EVERY HOUR THE STORE IS OPENED.]

The ultimate manifestation of the efficiency mentality was Robert McNamara, president Kennedy’s secretary of defense from 1961 to 1968, thereafter becoming president of The World Bank. McNamara was an accounting instructor at Harvard Business School before World War II, then he served as a specialist in operations research projects with the U.S. government during the war. After the War, he was hired by Henry Ford II—along with the so-called Whiz Kids—to revitalize the sagging profits of the Ford Motor Company.

He brought a mechanistic mind-set to the War in Vietnam, trying to micromanage it by the numbers. He apologized for this ill-conceived strategy in his 1995 autobiography In Retrospect: The Tragedy and Lessons of Vietnam.

Blindly relying on measurements can obscure important realities. The ultimate problem with numbers and measurements is what they don’t tell us, and how they provide a false sense of security—and control—that we know everything that is going on. I think the mentality among many leaders in professional firms is “If we can’t manage it, let’s measure it.”

What is the Purpose of a Law Firm?

What are firms trying to accomplish? What is the goal? Is it simply to crank out more work per labor hour?

If that’s the case, then under the hourly billing model their revenue actually decreases. That seems ludicrous.

Is it to crank out more work per labor hour to increase firm capacity? For what purpose? To add more “F” customers? That, too, doesn’t make much sense.

As Kurt Siemers, CEO of Kennedy and Coe, LLC (a Top 100 accounting firm) says:

And since becoming more efficient is a zero sum game over time, we have been left with working more hours to earn more. The historical business paradigm of our profession found itself on a collision course with our commitment to the well being of our people.

Simply stating that a firm wants to be more efficient is meaningless. They need to define what they are trying to accomplish long before they can begin to consider the best way to achieve their objectives. This is, I believe, precisely what Fred Bartlit is saying, which I agree with wholeheartedly.

The ruthless quest for increased efficiency contains within it a grave moral hazard. It’s encouraging behavior from firm leaders that is driving out creativity, innovation, dynamism, customer service, as well as talent from the professions.

I know you are a big fan of Total Quality Service, Pat. So are we. In fact, I came to Value Pricing through TQS, as the hourly billing method is a lousy customer experience.

The giants in TQS, thinkers such as Karl Albrecht, Stanley Marcus, Walt Disney, J.W. Marriott, among many others, didn’t have much use for efficiency, knowing that dealing with people requires effectiveness. Karl Albrecht criticized TQM, Six Sigma, etc., for this very reason, and thought the mechanistic mentality it fostered killed customer service.

Doing the Right Thing, not Doing Things Right [IT SEEMS WISER TO ME TO DO THE RIGHT THINGS THE BEST WAY, OR AT LEAST A BETTER WAY.]

Forget about efficiency. Worry about effectiveness. [IN MY WORLD, RON, I HAVE TO WORRY ABOUT BOTH.  IF I DIDN’T, I WOULDN’T HAVE CLIENTS.]

Better still, focus on efficaciousness; meaning having the power to produce a desired effect. This term is used to describe the miraculous power of many drugs since it suggests possession of a special quality or virtue that makes it possible to achieve a result—exactly what we are trying to accomplish in law firms for customers.

In an intellectual capital economy, and within firms, where wealth is created using the power of the mind—as opposed to the brawn of the body—these characteristics better explain the value created by knowledge workers.

Yet all of the so-called “efficiency” metrics and protocols such as Lean and Six Sigma have their origins in the late 19th century time-and-motion studies for manual laborers in factories, not knowledge workers who don’t work to the rhythms and cadences of an assembly line.

Firm leaders need to stop looking at input-output tables based on labor hours. Rather, they should define what their purpose and strategy is so to be different than the competition in order to command premium prices.

I believe lawyers are more artists than technicians. By all means, put processes in place for the low value work that can be streamlined and is repetitive. But when it comes to the thinking, strategy, synthesizing information, and creating results, use your minds, creativity, expertise, wisdom, and judgment. [PART OF WHAT WE DO IS ART. BUT PART IS PROCESS AND CREATING CONTENT.  THOSE ASPECTS ARE VERY AMENABLE TO PROCESS ANALYSES LIKE LEAN.]

I can increase an artist’s “efficiency” by providing them with paint-by-the- numbers kits, but it will produce crappy art.

Do I have a higher opinion of lawyers than do those who have commented on this board?

What is Superior to Lean/Six-Sigma?

It’s one thing to light a candle in the darkness and point out flaws in the status quo, a function incredibly valuable if we are to improve our theories.

However, it’s also important to offer an alternative to the present darkness.

A Professional Knowledge Firm is not a factory, which is why I believe Lean and Six Sigma are the wrong talisman. Companies such as Google and Apple don’t use these tools; Southwest Airlines doesn’t even use them.  [BUT SOUTHWEST MORE THAN MOST ANY OTHER BUSINESS I KNOW LOOKS TO STRIP OUT “STUFF” THAT DOES NOT IMPROVE THE CUSTOMER EXPERIENCE, WHICH IS THE VERY DEFINITION OF LEAN.]

As a knowledge worker, I have seen far too many firms implement this type of thinking, turning their artists into a caricature of Charlie Chaplain in Modern Times, getting sucked into efficiency metrics, quotas, etc. I believe the price we pay for this is a lack of focus on effectiveness and customer service.

I, for one, don’t want to work in an organization that has a ruthless focus on efficiency. It’s not very inspiring or meaningful.

We offer the following cognitive tools as superior to Lean/Six-Sigma in a Professional Knowledge Firm:

* Key Predictive Indicators—measuring the success of the law firm the same way the customer does;
* Before and After Action Reviews—a concept developed by the U.S. Army and one of the most innovative tools that can be used in a PKF.
* Knowledge Management—knowing what a firm knows so it can be leveraged is one of the most effective ways to create wealth for customers.
* Project Management—we believe this is a critical skill for all firms, no matter how they price, even if by the hour. PM looks forward, planning capacity, resources, risk, etc. Timesheets look backwards. Timesheets have allowed firms to do a lousy job on PM (not to mention capturing value through more strategic pricing). By the time you see a problem on the timesheet, the milk has been spilled, the damage already done. [I AGREE WITH ALL THESE CONCEPTS, NONE OF WHICH ARE FUNDAMENTALLY AT ODDS WITH THE CORE CONCEPTS OF LEAN.  AGAIN, THEY ARE NOT MUTUALLY EXCLUSIVE.]

I have one final question: Is this debate efficient? What are people putting on their timesheets when they participate in these types of Social Media discussions, which are quite time consuming?

I don’t think this is efficient at all.

I do, however, find it very effective.

[ARGUMENTS IN COURT ARE RARELY EFFICIENT, TOO.  NOT EVERY MOLECULE OR BREATH OR ARGUMENT NEEDS TO BE EFFICIENT OR EFFECTIVE.  TRYING TO FORCE EVERYTHING INTO ONE CATEGORY OR ANOTHER IGNORES THE REAL WORLD.

RON, WHEN WE FIRST MET, I ASKED YOU HOW YOU WOULD APPLY YOUR VALUE PRICING MODEL IN THE CONTEXT OF A CLIENT WHO HAD JUST RECEIVED A COMPLAINT AND WAS LOOKING AT 3 LAW FIRMS WHO WOULD HANDLE IT, TWO OF WHICH WERE PROPOSING SPECIFIC BUDGETS.  IN MY WORLD, THAT PROPOSED PRICE WOULD BE WHAT THE CLIENT LOOKED TO AS THE BOGEY YOU WOULD HAVE TO MEET OR BEAT.  INSTEAD OF RECOGNIZING THAT REALITY, YOU SHIFTED THE DISCUSSION TO THE THEORETICAL BENEFITS OF VALUE PRICING, MUCH AS YOU HAVE DONE IN THIS DISCUSSION BY FOCUSING ON ONLY CERTAIN ASPECTS OF WHAT LAWYERS DO.  REALITY IS TOUGH THING TO DEAL WITH, BUT IN POSTING ABOUT THE POSSIBLE VALUE OF LEAN TO CLIENT SERVICE, I WAS SUGGESTING THAT LAWYERS WOULD BENEFIT FROM A CRITICAL ANALYSIS OF THE MANNER AND PROCESS BY WHICH THEY HANDLE ALL ASPECTS OF MATTERS FOR CLIENTS.  THIS DISCUSSION HAS ONLY REINFORCED MY VIEW OF THE VALUE TO THAT CRITICAL ANALYSIS,  QUITE FRANKLY, I CANNOT BELIEVE THAT ANYONE REALLY BELIEVES THAT ACHIEVING GREAT RESULTS WITH INEFFICIENT PROCESSES AND WITHOUT CONCERN FOR COST IS PREFERABLE TO ACHIEVING THE SAME GREAT RESULTS EFFICIENTLY AND AT A LOWER COST. ]

 

I received an email yesterday that began "Hi Patrick J."  It caused a flashback to my childhood.  When my mother was angry with me, she called me Patrick J. When she was really ticked off, she called me Patrick John.  And when it was certain she was going to whip my sorry behind, it was all three names, Patrick John Lamb.  I knew what punishment was on the horizon just by what portion of my name she chose to call out.

So I get this email and immediately wonder why my mother is sending me an angry email.  Turns out it was an email selling me something.  Buy now and you get a free toaster, plus a chance to win other cool prizes.  So I started thinking about how I address emails to people I haven’t met yet.  If a person’s name is William, does he go by William, Will, Bill, or something else.  If I write "Dear William" and everyone knows him as Bill (think Bill Clinton), you immediately brand yourself as uninformed, especially if there is information you could find on the web that would tell you he goes by Bill.  My default is this:  if I don’t know the person or haven’t been introduced via a common friend (the 1 degree rule), I use "Mr."  For women, I use "Ms." because I usually don’t know the whether the person is married, kept her maiden name or is one of many women who prefer the neutral "Ms."  I tend to introduce myself as Pat as an indicator that I am comfortable with the informality that using Pat instead of Mr. Lamb or Patrick implies.

That’s my rule of thumb on forms of address.  Anyone have different rules that they follow?

Certain posts from In Search Of Perfect Client Service are posted on the Legal On Ramp discussion board.  The comments by fellow "rampers" on my two recent posts on Lean, Lean Client Service and Update on Lean: Ron Baker Takes Issue have been so interesting that I am taking the liberty of posting them here;

From Anthony Kearns, National Risk Manager for the Legal Practitioners Liability Committee (LPLC),  a non-profit statutory insurer that provides first layer professional indemnity insurance to Australian law firms:

Patrick,

Kudos on bringing up Ron.

A couple of points:

From what I understand Toyota doesn’t employ lean production in their engineering department although they are fantastic at project management so this fits with your apply the right tool to the right "bucket" theory.

Lean production was developed for an industry with sophisticated error management systems already in place. Even more importantly, there were well defined production standards against which output could be measured. In law we have neither of these so it will be difficult if not impossible to determine in advance where efficiency in process can be achieved without unsatisfactory compromise in quality.

So, again we come back to quality.

Efficiency in professional services comes from expertise. Expertise can be developed more efficiently than we do at the moment through effective education and (somewhat ironically) better error management. Lean production may have to wait until all this has been achieved.

From Fred Bartlit of Bartlit Beck:

Experience has shown that increased efficiency almost always results in increased quality

So, 6 Sigma does, to me, have lot of application in litigation firms

From John Brown of Brown Law Firm:

I join Pat in disagreeing with the contention that applying ‘lean’ to a knowledge firm, where efficiency in professional services comes from expertise, runs the risk of creating bad results efficiently.
I’ve seen data that ‘discovery’ can constitute 80% of the cost of litigation, and well over half of that cost can be tied up in document review if there is a significant amount of electronically stored information.
To produce a good result for the client requires the application of trial experience and judgment to ‘process’ discovery information in a way that strategically positions the matter for trial, with evidence that will bear on the ultimate issues developed with the right weight and emphasis to create leverage for a successful resolution by way of verdict or settlement.
The ‘value billing proponents’ have properly noted that in traditional hourly billing engagements there is an economic incentive to employ a linear, checklist-issue spotting, turn over all the ‘discovery rocks’ process that might arguably perfect outside counsel recommendations but in reality gain the client very little advantage in the litigation.
It is worth noting that the value billers want to be judged on results, believing that a ‘leaner process’ that focuses on development of evidence around the key issues that will impact a trial result and create settlement leverage is superior to a much broader, more diffuse undertaking of sorting through all possibly relevant information in a way not cost-effective for clients.
In that sense a ‘lean’ focused process is more likely to lead to successful results.

From Scott Irwin of International Paper Company:

I’ve always viewed "efficiency" according to the following formula:

Effectiveness + Cost Control = Efficiency

The error pundits usually commit when arguing that productivity tools such as Lean, JIT and Six Sigma don’t translate well to knowledge-based service firms is they tend to focus on only part (typically, Effectiveness) of the foregoing equation. While its true Effectiveness is a far more objective, statistically-measurable criteria in the manufacturing context, this does mean Effectiveness cannot (and, therefore, need not) be measured in the knowledge context. There tends to be less disagreement on the susceptibility of the Cost Control criteria to quantitative evaluation and improvement. Nevertheless, the (incorrect) assumption that the Effectiveness criteria does not lend itself to quantitative evaluation and improvement seems to be what prevents (or, more properly, excuses) otherwise intelligent, well-intentioned professionals from achieving their highest capacity for Efficiency.

More from Fred Bartlit:

1. Turns out that same changes that increase efficiency also have even greater impact on "Effectiveness/results"

That is because inefficiency is caused by relying on inexperienced associates. Efficiency results from using highly experienced trial lawyers with few, if any, rookie associates on the team

Experienced lawyers get better results than inexperienced lawyers, of course

2. And, effectiveness/results are quite easy to measure.

Several approaches: First, decide early on what is a good result. Size of verdict, beating injunction, size of settlement, etc

Second: have bonus hang on results achieved at end of matter when results are fully known and there is no issue of uncertainty

I hope you find this discussion as interesting as I do.

 

 

 

Ron Baker is one of the leading thinkers on the issue of value billing.  I take what he says very seriously.  In response to my previous post on Lean Client Service, Ron posted a comment.  Because comments tend to get buried or lost, I wanted to share his comment and offer a further thought.  Ron commented:

Hi Pat,

This is an enormously contentious issue. I don’t think Lean (or Six-Sigma) is relevant in a knowledge firm, where the talisman should be effectiveness, not efficiency. There’s an enormous difference between these two.

I have seen many professional firms attempt to implement Lean. Yet it was invented for manufacturers, not knowledge firms. Google and Apple don’t use it, for a good reason. It’s too focused on efficiency and not effectiveness. Lean would never argue for 20% Google Time.

If you want to read the debate on this issue, see:

http://www.verasage.com/index.php/community/
comments/book_review_is_mayo_clinic_efficient_
or_effective/

http://www.verasage.com/index.php/community/
comments/was_drucker_wrong_about_knowledge
_workers_a_book_review/

Regards,
Ron Baker, Founder
VeraSage Institute
www.verasage.com
Twitter @ronaldbaker

While I admire Ron greatly, I disagree with him on this point.  Some part, indeed for many, a significant part, of what knowledge workers do is process.  Accountants, for example, who do an audit, follow a series of protocols and procedures to ensure the process is consistent and complete.  So too for a review of a tax issue.  The same also holds true in a lawyer’s world.  Transaction documents, while not templates or boilerplate, do address common issues.  Most lawsuits involve collecting documents and reviewing them.  All matters can benefit from sound project management skills.  And so forth.

As my friend Jeff Carr, the GC of FMC Technologies, has described, in the practice of law, there are four buckets: process, content, advocacy and counseling.  It seems clear to me that there is a qualitative difference between process and content, on the one hand, and advocacy and counseling on the other.  Process and content seem perfectly situated for application of lean principles.  Consistent with the desire to reduce cost whenever possible in order to maximize profit margin, I think it valuable to look for opportunities to apply these principles.

The "knowledge workers are different" argument is a good one on many levels.  We want our surgeons to be good, not necessarily fast.  We want lawyers who get good results, not bad results efficiently.  But a lawyer who gets good results efficiently is more valuable than a lawyer who gets the same results inefficiently.  So the argument breaks down, or at least is inapplicable, at some level.

Continue Reading Update on Lean: Ron Baker takes issue

I was listening to NPR today.  There was a story about how Congress could not work on climate change legislation because it was focused on the health care debate.  It reminded me of a time when I asked a colleague if we could schedule a meeting to discuss a new case, only to be told that the lawyer was not available for the next month because he was writing a brief.  He was serious.  And it wasn’t a big deal brief.

 

So my question is this:  aren’t we supposed to be able to walk and chew gum at the same time?  Or are those who can keep several balls in there just "special."

 

Continue Reading Walking and chewing gum. At the same time.

Wikipedia defines "lean" this way:

Lean manufacturing or lean production, which is often known simply as "Lean", is a production practice that considers the expenditure of resources for any goal other than the creation of value for the end customer to be wasteful, and thus a target for elimination. Working from the perspective of the customer who consumes a product or service, "value" is defined as any action or process that a customer would be willing to pay for. Basically, lean is centered around creating more value with less work.

That, my friends, is an incredibly powerful idea. 

During the summer, I had occasion to visit with someone who is a lean expert.  He explained that there are seven points of waste that must be analyzed in every production or service scheme.  They are highlighted in the graphic. Lean is routinely applied to service offerings and can easily be applied to the practice of law, ranging from a particular lawsuit to litigation generally (or other practice areas too) to the entire operation of the firm. One might view a brief written by a rookie associate that is completely redone by a senior associate before being edited by a partner as wasteful.  If the error happens too frequently, perhaps the first draft should be done by a more senior person.

I am not suggesting answers–we’re still trying to come up with lean processes at Valorem.  But I am suggesting that the process, the questions and critical analysis, should be implemented in law firms. 

 

Earlier today, I wrote about the "efforts" of Reed Smith, Mayer Brown and O’Melveny to "transform" themselves by offering their clients alternative fees.  The reality is that the firms weren’t really doing anything.  They simply had formed committees to look at alternative fees.  Of course, anyone who has ever been in a big firm knows that committees are formed when somebody needs a place to send an idea so it will die.  My cynical view was these moves were simply PR.

Now a striking example of how the PR machine works.  Ashby Jones of the Wall Street Journal Law Blog wrote a post today, Is The Billable Hour Dying? Here’s More Evidence That It Might Be. This, of course, begs the question of whether forming committees to look at an idea is evidence that the status quo is changing.  How happy do you think the marketing pros at Mayer Brown and Reed Smith are at the moment?  They haven’t actually quoted a single alternative fee and the Wall Street Journal is now treating them committed players in the area.

Ashby Jones is a terrific reporter, but he got this one wrong.  The story about Merck actually doing something with its firms is a story.  Forming committees to "study" the issue is not a story.  The only real story would be to identify those firms that are not, at this moment, studying the use of alternative fees.  The story there would be whether those firms have what is needed to survive.

Continue Reading And This Is How PR Works

A lot of people have been wondering whether we had reached a "tipping point" on alternative fees and there is some evidence that we have.  You see, when BigLaw starts talking the talk, it means they are playing catch-up.  In the past few days, if you believe the headlines, Reed Smith, Mayer Brown ("Mayer Brown and Reed Smith set to champion fixed fees")and O’Melveny ("new business model") have all made the jump.

In our "only headlines matter" world, these headlines suggest tectonic change.  But what’s the reality behind the headlines?  It’s an important question, since firms won’t deliver headlines to their clients, they will be delivering invoices.  And if the invoices don’t change, all the talk in the world won’t amount to anything.

The Mayer Brown story is easy to dismiss.  According to the story:

Mayer Brown’s senior management is in the process of reviewing how the firm bills clients and is considering proposals to overhaul fee structures for core transactional practices including corporate, banking and real estate.

So as I read this, the fact that Mayer Brown is thinking about changing its fee structure is newsworthy.  Frankly, any firm that isn’t at least  thinking about changing its fee structure these days is too stupid to continue to exist.  And it also bears pointing out that Mayer Brown’s review is limited to transactional areas.  Most clients, however, acknowledge that litigation is the area of greatest need of fee change.

Reed Smith is in much the same boat. Again, the story is pretty clear:

Separately, Reed Smith has also been looking at changing fee structures within its transactional practices. The firm has a committee made up of partners from across the firm reviewing proposals and is looking at an increasing use of fixed or capped fees for clients within its financial industry group (FIG), corporate and real estate practices, for transactional work.

A committee is studying the issue.  Wow.  Aren’t we impressed. 

The O’Melveny story is more interesting, because the firm at least understands that if anyone is going to really believe its changed its stripes, it is going to have to use the language of "business model change."  So it does.  But do the announced changes really change the business model?  Here’s the telling lie:

What changes have to be made to address these new realities? For one thing, the firm wants lower associate-to-partner leverage. O’Melveny plans to reduce its leverage to “as low as 2 to 1 in some practices,” although this “will be partially offset by increases in charge hours and by fortifying associate and counsel quality.”

The essential element of alternative fees that actually work is that they shift risk to law firms, meaning the value changes from leverage and body count to experience and fewer bodies.  More brain power, less body count.  So a goal of reducing leverage "in some practices" to "as low as" 2 to 1 will make anyone experienced with alternative fees laugh out loud.  O’Melveny might as well take out a full page advertisement saying it really won’t be changing a damn thing.

I have written before that it is not possible to be both an alternative fee firm and a billable hour firm.  I’ve also written that I didn’t think BigLaw could make the necessary change to become alternative fee firms.  I offer these two stories as Exhibits A and B in support of my hypothesis.

 

 

Continue Reading BigLaw dipping its little toe in alternative fees

Valorem created an Advisory Board in May. The first meeting of the Advisory Board was Tuesday.  It was well-attended (7 of 10) and was incredibly valuable.  There really should be a better adjective–it was that good.  We are so very thankful to our Board for their time and input.  But my message here is simple.  If your firm doesn’t have an Advisory Board, create one.  Every firm and every firm leader can benefit from advice and ideas from people with a different viewpoint and different background.

Let me offer just one insight.  Everyone can mouth the platitude that you need to think like your client and give your client what he or she needs.  But what does that really mean?  Perhaps you could use your advisory board to put some meat on those bones.