We have to change the way we think about change. To get to the Next Normal and succeed in that new era, we are going to have to change. A lot. As a profession, we are, to be honest, not very good at change. We have to become better. How we do so is the question I want to address. But first, it is important to create some context.

Change is everywhere, every day, all around us. It happens, sometimes despite our best intentions. Yet despite its prevalence, our thinking about change is rather unnuanced. We present it as binary, yes-no, black-white. We tend to see it as only a matter of choice.  Sometimes it is, but often it is just part of the inexorable march of time.  And because of COVID-19 and the resulting economic fall-out, many people are talking about change, but the conversations tend to reflect the view that change is a binary choice.

This view is not new, certainly not in law. People have long discussed change as a choice between the status quo and an alternative. I am certain I have spoken and written in such terms, probably on many occasions. One reason may be that as lawyers or those involved with lawyers, we are used to the concept of legislative change.  Rules change as of a specific date.  “On January 1, this new law goes into effect.” By some kind of vote, something that is so on one day is no longer so the next.  Some change is like that. But most change is not.

Consider the pace and distribution of change on most things—the adoption of email; purchase hybrid or electric vehicles; use of social media; use of personal computers (this one is for those over 50 who worked during a time when no one had computers); use of cell phones.  The list of examples of such unevenly paced and distribution of change is too long to recount here.  But you get the point.

Change in the legal industry, at least the kind being addressed in the last 15 or so years, is almost exclusively the latter form.  When “legislative change” happens in the legal industry, it is almost always operating in arrears. For example, mandates for technological competence happened after almost every lawyer became technologically competent. The legislative change told the laggards it was time to catch up. So, for the rest of this post, I want to put legislative-type change aside. The more important concept at the moment is distributed change and how it takes place, especially inside organizations.

What do we do when change must happen quickly?  How does our experience guide a better change journey in the future? These are important questions because many law departments are facing demands for swift, material changes to the way they operate.

There are a number of truths that have been learned about the combination of distributed change and organizations such as law departments. Among them are that attempting to legislate change in a law department is hard because there is, practically speaking, no enforcement mechanism.  Employment for most who work in law departments is at-will, so enforcement could be easy, but it might be disruptive. Fear of disruption wins out.  Thus, those trying to lead change know they must confront and overcome the problems of outright non-compliance and the subtler, but more insidious and destructive MPR (massive passive resistance, a term coined by Jeff Carr). These behaviors prevent many change efforts from succeeding.

The challenge posed by insiders resistant to change may be the most important one a law department leader faces. The resisters determine whether a leader’s change agenda will succeed or fail.  To overcome the resistance, a leader should approach change systematically, in a way designed to overcome and, if absolutely necessary, overrun, bypass, circumvent, or if need be, eliminate, the resisters. In other words, change must be engineered.

What’s the starting point?  The vision.  Where you are going.  Think of it this way—you’re about to embark on a trip. Which of these is most helpful?

Go.

Go east.

Go east for a little bit.

Go east along Interstate 80.

Go east along interstate 80 until you get to New York City.

Go east along interstate 80 until you get to New York City where you will be able to east some of the best food ever, see amazing works of art at the Met and hear music that defines will bring joy to your heart.

The latter instruction provides the greatest comfort. People want to know where they are going.  The same desire is why newspapers contain headlines or why paragraphs should contain a topic sentence. But they also want to feel where they are going, to get a sense on how their lives will be better. Make sure everyone knows the real destination of the change journey.

Next, tell everyone why you are making the change. State the business case, and whether it is a “nice to have” change or an existential one. Here’s why this is so important.  Change is really hard.  No, harder than that. Really, really, really hard. Even when people really want to change, it’s hard.  Think about changing your breathing pattern.  You can do it if you concentrate, but stop concentrating, and you’re right back to way you did it before.

So, understanding why change is occurring and the desired end-state helps people understand why they are being asked to be different and what different will look like. But those two things do not address the “change the way you breathe” problem.  One easy way to address the “breathing” problem is to apply the concept of poka-yoke to the new design.  Poka-yoke means “mistake-proofing,” an example being a key that only turns one way.  If people cannot go back to the old way, you’ve travelled a major distance on your journey.

In the legal world, a poka-yoke solution is not always possible. Sometimes, nudging is required. When we started Valorem and were looking for ways to cut fat out of litigation, we had to constantly ask each other “what difference does it make to the outcome?” That question forced us to think about why we were doing things and then consider not doing them.  And we were all motivated to change—doing less increased our margins—but desire alone was not enough overcome the habits of a lifetime.  Our approach to nudging worked, but our environment was small.

What other types of nudging should be considered?  For a period of months or more, the change journey should be the primary topic of all one-on-one meetings with direct reports, and those should be help weekly.  And that should cascade down, so information about the change journey can be pushed up. It should not be addressed in a cursory manner. Before starting the journey, metrics should be established by which progress is measured, and those metrics should be reviewed in detail in one-on-one meetings.

The last major issue to plan for is how to handle the resisters. It is almost inevitable in a large organization that there will be resisters, and it is possible or even likely they might exist in a smaller one.  Much has been written on this topic, but from my experience, here is the approach I recommend.

  1. The first sign of resistance must bring a response. If the resistance was public, the response must be as well because the target audience is everyone who saw or is aware of the resistance. But if the resistance is not public, the response should not be either. What might a response look like? For a private act of resistance, there should be a private discussion where the act of resistance is identified and discussed.  Was it intended to be resistance?  Why did it occur? At the end of the discussion, it must be clear to the resister that resistance will not be tolerated, and the repercussions should be clearly identified.  Perhaps the only difference between the public and private act of resistance is that the fact that a meeting with the resister occurred should be make known.
  2. Make change interesting and fun. If people know where they’re going and can have fun getting there, they are more likely to take the trip.
  3. If resistance persists, the person needs to have an HR response and be put on some kind of improvement plan with specific behaviors and outcomes that must be obtained. It is fair to give the person a chance to improve and succeed, but the cost of failing to do so must be apparent.
  4. If resistance continues, a choice has to be made. You can abandon the change journey or you can move on from the resisters. It is a hard choice, especially since personal relationships come into play and removing someone from their position is disruptive.  But that disruptive is only for a short period does not outweigh the objectives of the change journey.

Change is hard. Damned hard.  But the results of change, effectively engineered and rigorously managed, can be fantastic.  If you have a place you need to bring your team, tell them where that place is, what it looks like, and why it is important to get there. Make sure people understand how the change will help their lives.  And then commit to the journey. Give people every chance to make the journey with you, but if someone prefers a different destination, you owe it to them and your organization to off-load them and help them find a journey they will enjoy.

I am not an expert in changing, and I don’t play one on TV either.  But I have done a fair amount of changing in my legal career, including starting an AFA litigation firm in the Great Recession and joining Elevate a decade later.  So, for the last 13 years, change has been a daily part of my diet and in the air I breathe.  I’ve come to understand that change is a constant, but it can be designed, engineered and managed just like any other massive project. It needs to be approached with that level of commitment and focus, lest the obstacles to change seem insurmountable and over the journey.

Prior Posts in this series:

The Next Normal

The Next Normal: Law Departments Learn to Prioritize Spend Based on Fundamental Investment Analysis

The Next Normal:Prioritized Pricing

The Next Normal: Moving from “Just Lawyers” to Multi-Professional Teams