Fast-forward to one day late in my Mom’s career.  (No…not the day she told an already mega-famous Jim Carrey, “They tell me you’re a comedian.  Good for you.  You’re such a polite young man; just stick with it and things will work out for your career.”  While true, that’s a story for another blog on another day).  I’m talking about the day she arrived in her office to find an alien device blinking soullessly on her beloved antique desk.  After regarding this intruder for a few minutes, she called Technical Services to determine its provenance and whether it posed any threat to her well-being.  She was informed, “Oh…didn’t you see the memo?  That’s your new computer.  We’re all going to be using them to keep track of our time from now on.”

I will leave aside any ironic comments about timekeeping being the first use law firms made of the greatest time-saving device ever invented.

Ever polite, Mom listened carefully to the voice from Technical Services as it extolled the virtues of the unwelcome newcomer.  Then she said, “Well…that’s lovely.  Thank you.  Now please come and take it away. I can’t see my rolltop desk because of it…And it’s blinking at me.”

Nothing against my Mom.  Got herself from a modest background through Vassar College and Yale Law School on scholarships.  Clerked at the Supreme Judicial Court in Massachusetts.  Started at Ropes & Gray at a time when there was precious little support or opportunity for female attorneys.  Had five kids in six years, leaving the firm for a while in the middle of this run (but helping organize the Peace Corps during her “time off”). Then returned to work.  Then had a sixth kid. Then shortly thereafter, becoming the firm’s second female partner ever.  All the while doing a great job raising my five siblings, and a marginally okay job raising me.  So, y’know, hardly a woman afraid of challenge or change.  Just one who didn’t want a 20th-century device on her 19th-century desktop.

This mini-parable of the blinking-computer-on-the old-oaken-rolltop-desk always reminds me that no matter how accomplished or intellectually curious a person may be, once they get used to doing things a certain way, it becomes difficult to get them to change that way.  Actually, it turns out that the more accomplished a person is, the more pronounced their resistance to change may be.  ”I have been successful when I do X, therefore X is the way to be successful.”  This is hardly surprising.  Evolutionary biologists correlate the degree to which a species has adapted to its environment with the likelihood that species will “win” by out-competing neighbors for resources within that environment.  Whether you’re a finch in the Galapagos or an fifth-year at Goodwin, the more fundamentally you adjust to the rules your survival depends on, the more likely you are to survive.  Seems logical enough, right?  Finches and fifth-years who morph to fit in live to have baby finches and become sixth-years. 

Precisely because of their high level of adaptation to their environments, however, evolutionary “winners” find themselves especially susceptible to environmental change.  If a finch’s beak is perfectly adapted to crushing seeds, they’re in trouble when drought or disease or new competition remove their one food source.  When you succeed because you are so tied into doing things one way that works in your world, you tend to miss out on changes to that world…even fundamental changes that threaten survival.  There’s even a technical term used across a range of disciplines–hysteresis–that describes the state where the rate of change in some organism or entity lags behind the rate of change in the environmental factors that act upon that organism or entity.  

Lawyers tend not to be as up-to-date on their hysteresis analysis as they perhaps should be. But after a few years and with the benefit of perspective and the clarity of hindsight, even these firms come to see how short-sighted their “X is the way to be successful” refrains really were. If you were around when lawyers resisting the adoption of email, then you know what I mean. It wasn’t all that long ago that I was told by (former) outside counsel that they were afraid that email would lead to clients sending new matters to them at 4PM on a Friday afternoon. It’s hard today to imagine practicing without it.  (It’s also hard today to imagine wanting to prevent clients from sending new matters to you).

Which perhaps is why we were struck by yesterday’s almost-true news that the world’s last typewriter factory had closed its doors for good.  (We say “almost true” because it appears that Chinese and Indonesian factories still make a vestigially small number of typewriters.  But not, it seems, for long. 

Dinosaurs have been gone from this world for a very long time.  But they ruled it for a much, much longer period–sitting atop the food chain for a period of time about  100 million years longer than the period from their extinction until now.

The same concept holds for typewriters.  They seem like such distant anachronisms now, but they were the predominant means of law firm document production for–what?–seventy or eighty years?  And have now been gone  for maybe twenty? For decades, law firms couldn’t have imagined getting work done without typewriters.  Now they can’t imagine getting work done with them.

So, to honor the almost-dead typewriter, do this…Look around your desk–rolltop or otherwise.  Take a peek around your office.  Walk the halls a bit.  Look for all the pieces of technology you use everyday.  Now try to pick out the ones mostly likely to make you look back on in a few years, unable to remember how you ever got anything done with it around.  Fax machine?  Desk phone?  Desktop computer?  Laser printer?  The evolutionary clock is ticking on all of them. 

Except the coffeemaker.  If Darwin wants our coffeemaker, he can try to come down here and pry it from the hands of our Director of Product Design.

[Why are you still here?  You shouldn’t be here.  Go here instead.  C’mon…go…]

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Good.  They’re gone.  Let’s talk about Pulp Fiction until they get back.

You remember 1994’s Pulp Fiction,right?  By Quentin Tarantino? When it hit movieplex screens Pulp Fictionchanged how popular movies tell their stories.  Since the early Greek tragedians, popular storytelling in visual media was always structurally the same: events occured chronologically across a three or five act story arc while tensions built and then ultimately resolved.  You might get an occasional flashback (Godfather II), or an out-of-sequence coda (the burning Rosebud in Citizen Kane) or an onstage recitation of pivotal off-stage occurrences (“Sorry Hamlet…Rosencrantz and Guildenstern ain’t coming down for breakfast no more.  Time to move to plan B”).  Basically though, on stage or screen, plots and themes and characters always just progressed sequentially and in rigid lockstep with each other.  Beginning.  Middle.  End.  Always.  Why such predictability?  That’s basically the way we humans operate.  A formula for doing something just builds by inertia, accreting over the years and hardening to the point where it seldom gets challenged, even after it has long grown stale.

Quick side thought:  If this could happen in a the theater and movie industries, which are ostensibly built on originality and individualism, how might the forces of inertia and accretion stifle innovation in an industry built on adherence to precedent, observance of community standard, and strict avoidance of risk?  Hmmm…let’s put that thought aside for a bit.  Maybe we’ll think of just such an industry.

Pulp Fiction abruptly changed this rigidity.  In the film, events occur in almost random order.  Plotlines just barely interrelate. Characters die in one scene, and then appear in later scenes that chronologically took place earlier.  Basically, it’s a complete re-shuffling of the traditional movie structure.  But it works really well because when Tarantino tosses out the accreted form (sequence…sequence…beginning, middle, end…), he focuses instead on the underlying purpose: storytelling.  Because of this focus on story over form, and because of Tarantino’s skillful technique, the center holds: characters develop; plot strings come full circle, tensions rise and resolve, all with great poignancy and salience.  As NYT reviewer Janet Maslin noted at the time, “far from confusing his audience, Mr. Tarantino eventually makes the film’s time scheme crystal clear, linking episodes with dialogue that may sound casual but sticks indelibly in memory.”

One indelibly recurring nugget of such dialogue conveys much character growth.  Throughout the movie, Samuel L. Jackson’s hitman character, Jules, recites, and alludes to off-camera recitations of, Ezekiel’s emotional prophecy against the Philistines (Ezekiel 25:17).

“The path of the righteous man is beset on all sides by the iniquities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of darkness, for he is truly his brother’s keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know my name is The Lord when I lay my vengeance upon you.”

As he profanely informs us towards the movie’s end (I won’t link to it, but if you search Youtube for some combination of the words Pulp-Fiction-Ending-Diner-Scene, you’ll find the scene pretty quickly), Jules is at something of an inflection point in his life when he drops his last Ezekiel 25:17 on us.  He’s been through a lot in the course of fulfilling his duties to his employer.  Now, he’s just going to walk the earth for a bit.  He doesn’t exactly know where he’ll end up or what he’ll do as he moves away from his previous role (a role he excelled at, by all accounts).  But he recognizes that he wants to guide others with what he has seen and learned. He’s trying real hard to be the shepherd.

And that’s really all I wanted to say about Pulp Fiction.  By rearranging the stale and accreted practices of his industry, Tarantino revitalized moviemaking, spawning scores of imitators and—for while anyway—making movies a bit less rigid and a bit more interesting.  He also makes us remember that it’s never really the existing structure that drives innovation, it’s the characters who emerge from that structure.

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Oh.  You’re back.  See what we mean about Reliance on Counsel?  Someone who actually knows what they’re talking about writing succinctly and well about deep-rooted structural inefficiencies in the legal service delivery model. And then (wait for it….) actually suggesting solutions and offering to help.

Different, huh?  Better, right?  As we’ve noted before, too many legal blogs are thinly veiled attempts to get the reader to buy whatever legal service or technology the writer is peddling.

Baer isn’t selling anything. As Qwest General Counsel and Chief Administrative Officer he just quarterbacked the massive $20B M&A deal whereby his company got A’ed by and M’ed with CenturyTel without getting F’ed by the government. So, he’s sold enough for a few hundred lifetimes, thank you.

Because of the high-profile jobs he’s held, Rich has been in a unique position to observe how legal services can sometimes do disservice to the clients they’re supposed to serve.  Because of how well he did his last job, he probably has an audience that will listen to his suggestions about how these service providers need to adapt.  If he’s offering his help now in shepherding industry change, we should all be listening.

So, we encourage you to start reading and keep reading Reliance on Counsel.

Or we will strike down upon thee with great vengeance and furious anger.

In an AmLaw Daily interview several months ago, Seyfarth’s chairman, Steve Poor, attributed the firm’s performance to its clear-eyed recognition of fundamental flaws in the large-firm economic model and the anticipation of what might happen to that model should the rising revenue waters recede.  Poor stated, “Everyone loves rate-insensitive work,” he says. “But we realized several years ago: That model is fundamentally flawed. We realized a day like [the downturn] would come.”  Armed with that realization, the firm redoubled its efforts to provide more cost-effective services. 

At last week’s “Controlling Legal Costs” conference at Manhattan’s Harvard Club, Seyfarth stole the show with a stunning presentation by Boston-based partner Lisa Damon about the depths of its dedication to process improvement and cost-cutting through Lean Six Sigma methodologies.

Six Sigma process management, for those of you who haven’t encountered it, is a management philosophy that rigorously defines and measures and refines a business’s core processes and maps them back reiteratively to that business’s conceptualization of “success.”  As Damon put it, this type of thinking has traditionally been “anathema” to lawyers.  Lawyers have not been interested in process-based efficiencies, she noted, because we have made so much money from inefficiency.  The more inefficient a process is; the longer it takes.  The longer it takes; the more hours we bill the clients.  The more hours we bill the client; the more money we make…up to the point when the client fires us.

Probably true…but Seyfarth is through the looking glass now.  As part of their Lean Six Sigma implementation, their internal Green Belt teams precisely map out each discrete step in their standard processes (say, for example, filing a single-plaintiff employment lawsuit in New York) and then rigorously work to eliminate any unnecessary steps while smoothing the necessary ones.   Then they constantly re-examine and refine those process maps.

How is this working for the firm?  Damon reports unprecedented cost savings and sharp increases in customer satisfaction.  And the firm’s overall numbers show how economic robustness and resilence can grow from a focus on efficiency.

Now…if they added a little document automation platform into the mix, I wonder how much further they could go?

Full article here.

For example, according to the partner, German representations tend to be very terse: “the seller represents that he or she has no knowledge of any material environmental liability on the premises” rather than, “the seller, and those persons named on Schedule F attached hereto each jointly but not severally covenant, represent, and warrant that they have no knowledge of any material environmental liability on or emanating from the premises, where “knowledge” means not only the actual knowledge of the party making such covenant, representation, or warrant, but also the imputed knowledge of such facts and circumstances which would said party would have perceived if they had undertaken a reasonable investigation of those premises no less frequently than annually, and where “material” shall mean “likely to result in total costs of investigation, remediation, or adjudication in excess of fifty thousand dollars ($50,000) USD.”

All in all, an interesting way to force efficiencies into contract drafting.  Increase the pain and expense associated with long-windedness and you tend to get more conciseness.  Maybe if we installed a device here that would jolt our correspondents with 5,000 volts when they exceeded 300 words per bleaf, we could achieve the same effect.

Kurz ist nett (“concise is nice”).