There is a series of commercials by a cell phone company showing how certain functions would be different if run by outsiders. There is Congress, run by firefighters. There is an airport run by roadies. They are funny, and make a point. They also show quite clearly why it would be a miserable failure.
Speaker: Need clean water guys?
All: Aye
Speaker: Easiest job I ever done. We’re outa here.
Of course, the question was never whether we need clean water, but how to accomplish it. Not nearly as easy a job. But it primarily demonstrates how those on the outside lack the understanding of what is involved to appreciate the difficulty, responsibility, concerns and issues. Funny as it may seem when it’s not your responsibility, everything changes when it falls on your shoulders to get it right.
And so, reading another fascinating post from Jordon Furlong’s Law 21, I recognized a similar problem when people who aren’t lawyers, whether they are in marketing or systems or efficiency, try to recreate the practice of law through their eyes. Well intended, and capable of thinking outside the box as they suffer none of the archaic constraints that shut our minds to innovation. But also lacking the occasional understanding of the core of what we do. Among many interesting suggestions, Jordon included this
It looks like many firms are missing an opportunity here to carefully and intelligently review their support needs and re-engineer both their personnel and their infrastructure investment accordingly. Simply cutting staff jobs provides only a short-term bottom-line assist while creating many other short- and long-term problems, whereas a more creative approach could both save money and improve the firm’s operations at the same time. Here are just a few possibilities.* * * Outsource or offshore functions like human resources, IT or even research and other quasi-legal tasks — firms have already done this, from West Virginia to India.
In the comments, Jordon was taken to task for this suggestion. Research is a “quasi-legal task?” Not in my office. Apparently, not in anyone else’s either. Research is a legal task. Indeed, a primary legal task. That it’s given to the youngsters in Biglaw is a test of skill, not a shunting off of inconsequential work.
But it’s not Jordon’s fault that he misunderstood. When we deal with non-lawyers, we need to be vigilant that we not be led down the garden path of efficiency to the detriment of our representation. They aren’t lawyers. They don’t know. They aren’t supposed to know, because that’s what distinguishes lawyers from non-lawyers. And we are responsible for our representation, not them.
The blogosphere is a swamp of ideas. Some great, others not so great. Some downright bad. There are a number of great ideas from marketers that are dangerously wrong, even unethical, for lawyers. It’s not that they aren’t brilliant, but we don’t sell Brillo and marketers, being marketers and not lawyers, don’t always understand the difference. Indeed, some of the marketers are lawyers or have marketed exclusively for lawyers, and either have forgotten what it means to practice law or still don’t get it.
Do not be sucked in. Do not be misled. At no point in your career, or in your life, will you be able to tell a judge or a client that it’s not your fault, a marketer told you to do it, with a straight face.
The certificate on the wall attesting to your privilege to practice law has your name on it. Never defer your responsibility to anyone else, whether a firefighter, a roadie or a marketer.
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If Law Was Run By Non-Lawyers
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Scott, I couldn’t agree more with your central point: lawyers are wholly and solely responsible for what transpires in their practices and under their names. A lawyer who explains away a mistake or a bad judgment call by blaming it on a marketer or blogger’s advice is worse than the poor craftsman who blames his tools. That said, I need to take issue with a few points in your post.
1. For the record, I am a lawyer. My practice experience was brief and I’ve spent the last dozen years in legal journalism, so I’m certainly not a practicing lawyer, but I am a member of the bar.
2. Referring to research as “quasi-legal” was an error on my part, one I acknowledged in the comments. Research is, we all agree, a legal task. But that makes it no less susceptible to being outsourced or offshored or heavily supplemented by knowledge management tools if the client can benefit therefrom. “Legal” work is not immune to the market forces that apply to “non-legal work,” and efficiency is one of those forces. Absolutely you need to balance efficiency against professionalism, but it’s a false dichotomy to suggest you need to choose between them.
3. I’m not sure it’s helpful to draw a distinction between “lawyers” and “non-lawyers” in terms of assessing whether a particular perspective or opinion is valuable. In my experience, practitioners make as many mistakes from being “inside the walls” as non-practitioners like me do from being outside them. Like anyone else, I have good ideas and bad ideas; but I would hope people would judge the quality of those ideas on their own merits, not on the basis of whether the source of those ideas fits a pre-determined notion of reliability. Otherwise, people run the risk of automatically closing themselves off from, or heavily discounting, a perspective that’s valuable precisely because it differs from their own.
Thanks very much for your link and commentary,
Jordan
Hey Jordon. Sorry about saying you weren’t a lawyer. I knew you were a legal journalist, but wasn’t aware that you were a non-practicing lawyer. As for legal research being outsourced, I lack the Biglaw mentality where I can separate myself from responsibility for everything that goes into my work. If I outsourced research, I would do it all over again just to make sure it was right. If I gave it to an associate who I trusted, I would rely on that trust. Someone I don’t know and never met would be impossible for me to trust. This is the essence of how I conduct my practice. I try the case. I write the brief. I argue the appeal. I am the lawyer. I take complete responsibility for my work.
So the “false dichotomy” is very real for me. My client didn’t hire someone in Bangalore to defend him, and I can’t tell the judge that someone in Bangalore said so. It’s a very real dichotomy for me, but that’s the difference between personal responsibility and diffusion of responsibility. Once a lawyer no longer feels responsible, it doesn’t matter who does (or doesn’t) do the work. I hope to die before I ever feel that way.
As some have come to realize, I have a huge issue with lawyers being pushed further and further, harder and harder, down the road to merchants. I appreciate outside the box thinking, but find far too many lawyers happy to take the easy route, the facile path, toward success. Most aren’t clear enough of their goals and professional limitations, in their own heads, to remain firm against ill-conceived notions that are perfectly appropriate for someone selling ladies hats, but not lawyers. And that is what I fear. A profession of young, desperate, self-excusing, self-promoting, rationalizing semi-competent (or worse) lawyers happily being pushed to the precipace by their marketing counterparts.
But perhaps those with a scientific mind, rather than a legal one, could assist in filtering out the usage of junk science and illogical argument in place of the good for both? I’d like to think that legal training would result in the same skill set but the howling harridans of TV infamy do rather argue for the opposite.
Scott,
Your post is spot-on. Attorneys that think they are not responsible for what occurs in their name should be taken to task for those transgressions.
I sense a rubric and rationale issue here. Or a “container vs. the thing contained” one; comes to the same thing, as my wife reminded me, when she hit me with the milk.
Scott – Thank you for this post.
As a legal marketing professional, I truly appreciate your opening up this dialogue.
The key to our success is working together and listening closely to each other via an ongoing, continuous conversation, each being fully responsible for our area of expertise and carefully listening to the other.
This is where social media plays an important and necessary role.
[Ed. Note: marketer’s self-serving inclusion of link to herself deleted for obvious reasons.]
What a total load of crap. Go try to insert a link to yourself somewhere else.