Reading for empathy

I consider myself lucky to know people (online and offline) who read widely. I know that we might not see eye to eye on what we read, or on all sorts of other issues, but we do agree that there is something important about books and the ideas they contain.

In Design Observer recently, Ken Gordon described how he found new meaning in Philip Roth’s novel, The Plot Against America.

…buried in The Plot is a surprise. I didn’t realize until this go-around, but the novel contains, among many other virtues, a superb illustration of how empathy informs good design. That’s right: Philip Roth, designer manqué!

In addition to the normal modes of scenic description, common to many novelists, Gordon describes how one of Roth’s characters solves a problem for another just as a designer would. That vignette is enough for Gordon to consider the book worthy of inclusion on the syllabus of an introductory design course. But he makes a more important point at the end of his article.

As an undergraduate law student, I was encouraged to read novels with legal themes, such as Dickens’s Bleak House or Harper Lee’s To Kill a Mockingbird.  There is certainly merit in that, just as a design student might learn from the subtle way Roth deals with a design problem in The Plot Against America. Gordon’s broader point is that the practice of reading novels gives broader benefits than that.

The Plot is a novel of grand design, and I’d love to see more designers read this, and other such books, as a way of educating themselves in empathy. Submersing ourselves in great works of literature is a wonderful way to train us to be more human.

So I say to you, designers, students, aspiring humanists: If you’re serious about understanding people, feeling for people, and using that to inform your design, you’d do well to read superlative works of fiction. The Plot is a fantastic example, but it’s one of many, many volumes you should be extracting from the shelves.

Other forms of fiction may be equally powerful. I am reminded of Roger Ebert’s perspective, in the biographical film, Life Itself:

…the movies are like a machine that generates empathy. It lets you understand a little bit more about different hopes, aspirations, dreams and fears. It helps us to identify with the people who are sharing this journey with us.

In an age when legal practice is being improved by intelligent applications of technology, empathy is an increasingly important aspect of what it means to be a valued practitioner. Clients are people, so lawyers should read widely, for similar reasons as designers and other humanists. (Whether or not design is brought into the business itself.)

Change, technology and people

A long time ago, I argued that social technologies make most difference when they start by meeting real needs that people have. I still think that is true, and I am beginning to wonder if the same is true for other types of technology too. A few things over the past week have brought some threads together for me.

Gibson Mill at Hardcastle CragsJoanna Goodman wrote a very good overview of the state of legal IT and innovation in the Law Society Gazette. Embedded in the middle of the article was this short statement:

Firms are focusing on innovation because legal IT is getting a lot of attention at the moment and they are looking for opportunities to use technology as a differentiator.

I am not so sure that technology alone can be a differentiator, except for a short time, especially as firms generally have to buy in systems and expertise (which is therefore likely to be available to everyone else on the same terms). When firms mix technology with something unique that they have (the knowledge of their people, for example) then there is a possibility of differentiation. I posted a couple of tweets suggesting my reservations (within the scope of 140 characters.

There followed a very interesting discussion about the need to consider technology and cultural issues in innovation, sparked also by a couple of observations by Charles Christian. (The whole thing can be seen on Storify.) In the end, I was persuaded by Joanna’s argument that technology is too important (and moving at too fast a pace) to be left to one side while firms deal with people and cultural issues.

Today, two excellent blog posts have made me return to the question of the balance between people and technology.

Julian Summerhayes, writing about “the broken law firm”, suggests that firms have never been particularly good at considering people issues:

As someone who’s worked in the business a long time, I’ve witnessed countless changes. Mostly these have been technologically driven. But what I’ve not witnessed is any attention being paid to the soft stuff. At this stage I’m reminded of what Tom Peters has been banging on about for about 40 years: Hard is Soft. Soft is Hard. In other words, focusing on the numbers is easy. The other 101 soft stuff is the really, really hard part of running a law firm (or any business).

Julian is not just concerned about innovation, but his point is particularly valid in that context. How many firms focus on improving processes or on taking advantage of the latest technology in the belief that these are hard options, when the really meaningful work consists in nurturing people (employees and clients)?

Anne Marie McEwan comes at the question from a slightly different, but no less interesting, angle. She has been developing a new approach to workplace learning that she has called Tiny Triumphs, and has written a long post on LinkedIn describing why it is important. (The post was first published last week, but Anne Marie substantially updated it today.)

Tiny Triumphs has a deceptively simple structure:

Eight themes and associated topics are explored across three phases:

  • Diagnose workplace context (what’s happening)?
  • Select, scope and plan a small workplace project – do it!
  • What happened? What next?

What sets Anne Marie’s work apart from other approaches to developing skills is the fact that she puts people and their social interactions at the heart of work, and this principle then drives the learning experience:

…business processes are socially-generated through people, their relationships and inter-actions. These dynamic social processes are emergent (they emerge from what people do together) and they are complex – the people who generate them are diverse, connected, inter-dependent and adaptive.

I prefer self-organising to adaptive. People are not robots. Despite prescribed rules and sanctions for deviating from them, people decide the extent to which they will comply. They self-organise, acting alone (influencing / coercing others) and together in ways that may or may not be in line with what’s expected of them. It is therefore important to have some knowledge of topics like power, cultures (national, organisational, professional, demographic), collaboration, conflict, and how taking personal responsibility and organisational values-in-action encourage humane behaviour.

Anne Marie takes a similar approach to understanding customer-facing workflows — meeting (often undefined) customer expectations through the “outcome of relationships among people, their capabilities and how they interact” — and to workforce needs:

…work is changing. Operational roles are expanding and becoming more socially, technically and organisationally complex. What sort of pressures, for example, might fast-paced, collaborative, relationship-focused demands create for people? What might the issues be where knowledge is new, perhaps abstract and emerges from cross-boundary, cross-cultural conversations.

The issues that Julian and Anne Marie raise brought be back to the technology vs culture discussion I had last week. I am still persuaded that the future for law firms must involve advances in technology. (Those who hold out will become as rare as modern hand-weavers, compared to the successors of the 18th-century developments in weaving technologies.)

But, law is still an inherently people-centred business. As such, technological development needs to proceed with people in mind. When innovation is led by technology, and by people who promote technology without considering its impact on people, it is less likely to succeed than if change is driven by and depends on the interests of real clients, employees and others inside and outside the firm.

Lawyers moving into business services: good or bad?

Practising lawyers sometimes find themselves moving into operational roles in other areas of their firms. This tends to occur most in areas of business services (especially knowledge management, but also business development, risk, HR and learning, or procurement) where legal skills are relevant or where no particular expertise is needed. (IT, finance and facilities tend not to attract lawyers, except in management roles.) This flow raises two separate questions for me: are lawyers right for these roles; and should the firm be looking externally, rather than moving people within its walls?

Dalí's easel, Castell de PúbolThe Lawyer’s website today features the story of Linda Zell: a litigation lawyer at Olswang who became the firm’s head of corporate responsibility (CR). Her progress into that role is a really good example of how moves like this come about. Her introduction to CR came from a need to add a paragraph to a client pitch document, and then grew over time to a real interest, then a drive to see it promoted properly within the firm. After a time juggling CR and lawyering, she is now responsible full-time for leading Olswang’s CR strategy. One of the firm’s partners is quoted, “we asked her to write a paragraph on CR and she set up a whole department instead.”

This kind of transition is not unusual — in fact, I did something similar when I moved into a lead knowledge role. Firms need to be aware that good and bad things can flow from such a move.

The upsides

On the positive side, when a firm’s lawyer moves into a new business services role, the firm gets the benefit of someone who knows how the firm and its lawyers work. They therefore have an edge over outsiders who might take a while to get under the skin of the business. This may be particularly valuable in roles like KM or CR, where a significant part of the job involves careful influencing and persuading, so that understanding people is at a premium.

Another benefit is that the lawyer who moves into such new roles is likely (as I think may be the case with Ms Zell) to be especially driven to succeed. When a firm is taking a new direction, this zeal can be very useful.

Most firms consider it important to support their people develop their careers. This might easily be done within existing career tracks. Lawyers may move smoothly from trainee to partner, whilst business services professionals might advance from entry-level roles through management to leading a function. It is much harder, and therefore more laudable, for a firm to show its commitment to career development when someone makes an unusual move such as from lawyering into business services.

The drawbacks

The areas where lawyers tend not to take roles, such as Finance and IT, often depend heavily on technical expertise that lawyers do not have. This is becoming true of some other areas (such as HR and marketing), which have previously been destinations for lawyers moving out of practice. In newer areas, such as CR and KM, firms still have a choice to appoint people with experience and expertise in the field in preference to their own lawyers.

Appointing an expert from outside might allow the firm to be more confident that they were getting the benefit of the most up to date thinking in the area, which could mean that the function could mature much more quickly than if it were led by an internal lawyer. In some situations, the firm’s partners may be more respectful of acknowledged expertise as opposed to a more familiar, but untested, internal appointment.

External appointees might also their own networks of people in similar roles who could swell the ranks of the team quickly if that is what the firm needs. It may take some time for ex-lawyers to be able to develop their new teams around themselves.

Getting the good without the bad

Fortunately, there are ways to get the benefits of internal appointments without the downsides. (Or at least minimising any negative impact.)

One critical step would be to get external validation of the firm’s choice to create the new role in the first place. It may be too easy to give in to the pressure of a lawyer to create a new business services function for them to lead. Most disciplines have a community of consultants who can advise on the adviseability of embarking on this new activity. They might also help to define the purpose of the function, and help the firm to develop a role profile for the ideal leader. If the internal candidate matches this role profile, then the firm would know it was on the right track.

The new appointee might also benefit from external support, and good firms should budget to pay for this. No matter how enthusiastic someone is, starting up a new support function is a hard task. Almost inevitably, in this scenario, the new appointee is the person in the firm who knows most about the job. Without an internal mentor or coach, they may not get the right kind of constructive support and flounder quickly. If they are able to draw on expertise from outside, the firm will get some of the benefits of making an external appointment.

On the whole, then, I think firms should continue to help their lawyers move into different areas of the firm, but they need to be aware of the possible risks and manage them sensibly.

(In case it needs saying, I have provided support of the kind described for knowledge roles. Please get in touch if you are new to a knowledge role, or if your firm is thinking of creating or extending its knowledge function.)

Process won’t save you from mistakes

One of the benefits of Twitter for me is that I get great pointers for new things to read from the people I follow. One such came a couple of weeks ago from Simon Bostock. He drew my attention to “Bedford and the Normalization of Deviance” — an analysis by Ron Rapp of a recent National Transportation Safety Board (NTSB) crash report. In Rapp’s words:

…after fifteen years in the flying business, the NTSB’s recently-released report on the 2014 Gulfstream IV crash in Bedford, Massachusetts is one of the most disturbing I’ve ever laid eyes on.

If you’re not familiar with the accident, it’s quite simple to explain: the highly experienced crew of a Gulfstream IV-SP attempted to takeoff with the gust lock (often referred to as a “control lock”) engaged. The aircraft exited the end of the runway and broke apart when it encountered a steep culvert. The ensuing fire killed all aboard.

…in this case, the NTSB report details a long series of actions and habitual behaviors which are so far beyond the pale that they defy the standard description of “pilot error”.

As we know from Atul Gawande’s work and elsewhere, pilots are supposed to work methodically from checklists. In larger aircraft, there will be more than one pilot so that each can check the other. In this incident, neither of those safeguards prevented a complete failure to attend to instrument warnings or follow instructions to avoid the crash.

Rapp suggests that the aggregation of errors in the face of clear instructions and warnings is an example of the normalisation of deviance. This is a term coined by an American sociologist, Diane Vaughan, in a study of the culture of NASA that contributed to the Space Shuttle Challenger disaster. She summarised the concept in a later interview:

Social normalization of deviance means that people within the organization become so much accustomed to a deviant behaviour that they don’t consider as deviant, despite the fact that they far exceed their own rules for elementary safety. But it is a complex process with some kind of organizational acceptance. The people outside see the situation as deviant whereas the people inside get accustomed to it and do not. The more they do it, the more they get accustomed.

Vaughan’s work has been developed by others. I first came across the concept in a radio programme in 2010, in which Scott Snook was quoted:

Each uneventful day that passes reinforces a steadily growing false sense of confidence that everything is all right — that I, we, my group must be OK because the way we did things today resulted in no adverse consequences. 

When I tracked down this quote to its source, in Chapter 6 of Snook’s book, Friendly Fire: The Accidental Shootdown of U.S. Black Hawks over Northern Iraq (an account of an incident in Iraq in 1994), I discovered that there was more useful detail, which is directly relevant to the growing use of checklists and processes in law firms and elsewhere.

Practical drift between stability and instability

A useful summary of Snooks’s insight can be found in Industrial Safety and Hygiene News, by reference to the diagram linked below.


Snooks’s model describes behaviour in four quadrants bounded by the degree of ‘situational coupling’ and ‘logics of action.’

Situational coupling is described as loose or tight, depending on the extent to which parts of the organisation are free to operate autonomously. The more interdependence there is between different parts of the organisation, the tighter the situational coupling.

Logics of action are described as rule-based or task-based, depending on the primary driver of actions in a particular context. Rule-based actions are driven by checklists, policies, or other pre-determined norms. Task-based actions are more likely to be responsive to the immediate scenario or on local or personal habits — doing whatever is necessary to get the job done.

Snooks’s view is that two of these quadrants are mismatched and therefore unstable — that is, rule-based logics of action are unstable in loosely-coupled situations, and task-based logics are unstable in tightly-coupled situations. The ‘practical drift’ described by the circle of arrows in the centre of the diagram suggests how organisations move through the sequence from stable to unstable quadrants.

Law firm process and normalisation of deviance

How might this apply to the way law firms adopt (or improve) working processes?

The starting point would be a desire to define the nature and content of the policies or processes to be applied across the firm — these might cover working practices, compliance requirements or client-care standards, for example. These norms are set in the ‘design’ quadrant — where there is a common view that the firm needs to work together to achieve a particular goal (therefore tightly-coupled and naturally rule-based).

Once the rules are set, they become the basis for action, even when parts of the firm are working separately from other parts. This is the second quadrant, described as ‘engineered’ because actions are forced to be rule-based rather than driven by the context. Whilst the rules are new, they tend to be followed despite the mismatched nature of the situation. As such, the firm need have no cause for concern (apart from some teams reporting that the situation feels unnatural).

However, because of the mismatch, work in a loosely coupled situation will eventually default to task-based behaviours. This means that in the third quadrant (‘applied’ in the diagram), people will work in a way that feels more natural. They may ignore the wider organisational rules because they ‘don’t feel right’ or because a better outcome (personally or for clients) can be achieved by responding to more concrete or immediate needs.

This is where normalisation of deviance arises. All those involved know what the rules are, but they (tacitly or otherwise) agree to act according to a different set of standards. For the most part this is not a problem. As Snooks puts it, loosely coupled systems are both resilient and fragile. They can last a long time — until an external, possibly random, factor breaks them. This is where the original quotation resurfaces:

Each uneventful day that passes in a loosely coupled world reinforces a steadily growing false sense of confidence that everything is all right — that I, we, my group must be OK because the way we did things today resulted in no adverse consequences.

The emphasised phrase (omitted when I first heard the quotation) makes things much clearer.

Failure (the fourth quadrant) occurs when the system is pushed into a tightly coupled situation. This may happen when work that usually progresses autonomously is forced to take account of actions elsewhere within the firm or even externally. Where there is interdependence, task-based norms no longer work, because the newly introduced elements cannot be aware of the traditional behaviours (whether deviant or otherwise) of the loosely coupled team. In the worst-case (such as that described by Snooks in 1994 Iraq), previously loosely coupled teams have to assume that everyone else is following the rules, and behave accordingly, with fatal or disastrous effect.

Avoidance mechanisms

I think many, if not most, firms could identify situations falling into the failure quadrant. These errors may be minor, but they always have a cost — the persistence of a particular type of mistake-making inevitably suggests deeper problems to clients or insurers. How can they be avoided?

The standard response to persistent errors is to provide additional training and to highlight the importance of the rule-based systems even for loosely coupled situations. As I have pointed out before, this approach is rarely successful. On further reflection, I think a better response needs to be developed with the errant team.

Snooks’s description of practical drift suggests that the problem isn’t simply disobedience to organisational rules — it is that a rules-based logic does not match the needs of a loosely coupled situation. I suspect persistent errors in law firms occur more often in teams that work autonomously, and which are therefore more comfortable using task-based logic to structure their work. As such, then the answer must lie in one of two options.

The first is probably most attractive to firms with an interest in controlling the work people do. This would be to force interdependence between teams across the organisation. If the organisation becomes tightly coupled by default, adherence to common rules would be more natural. There may be additional benefits in such a refocusing of work, and they could make it more palatable, but otherwise it may be a struggle within the normal partnership model.

The second option is to open up a discussion about the way loosely coupled teams work, especially in difficult situations. This might include making work more visible, or clarifying the shared task-based logic used by different teams, so that the wrong assumptions aren’t made. Discussions of this type are likely to be very sensitive (particularly if they are positioned as a response to error-making), and so they probably shouldn’t be undertaken by the firm’s management. Impartial external, but informed, facilitation would be more fruitful. (Of course, if your firm is interested, I can do that.)

Even if no action is needed, being aware of practical drift should help firms understand better why and where their process improvements might succeed (and, more importantly, what might make them fail).

Social: location, listening, connection, reciprocation

As happens from time to time, there is a bit of a backlash against Twitter and other forms of social media at the moment. Jon Ronson is publicising the paperback edition of his book, so the headlines focus on his ‘disenchantment with social media’. Ed Sheeran has chosen to concentrate on some new experiences ahead of releasing his third album, so he has turned away from social media. In highlighting these examples, we run the risk of misunderstanding what being online can mean. Despite the stories we are told, it is more important that social media are social, rather than media.


A city street might have many purposes, and see many forms of human behaviour: teenage shopping, adult drunkenness, coupling, casual conversation, protest, police brutality, acts of charity, theft, commercial deliveries, commuting by car, walking, running, sports events… the list is potentially endless. But we rarely define the street by one, or even a small group, of these activities. We are more likely to talk about the activity itself, with the location either ignored or sidelined.

We have yet to reach that level of maturity when talking about online interactions. Too often it is still the case that the medium in which something happens is identified as a cause of that something. Our understanding of these platforms is thereby impoverished.

I have been ‘online’ in some form or another for almost 25 years, starting with places like Usenet and CIX. Over this time, I have noticed some recurring patterns in the way people become social online.

Where to go?

As we become familiar with our own towns and cities, we learn quickly where the best places are for particular types of gathering. There is no point in holding a protest where we can’t be seen or heard. Likewise, an intimate dinner isn’t likely to be found in a casino. There is a huge range of online places, each of which supports different kinds of interaction. Some are also specialised as to the topics they cover. On the larger platforms, such as Facebook, Twitter and LinkedIn, everyone needs to create their own community.

When things start to go wrong online, the cause is often a lack of common understanding about the nature of place. If one person thinks they are in the right place for a contemplative discussion about life, but someone else considers that their agressive responses about the government’s political choices, there is no common ground. Sadly, this kind of mismatch still happens too often — often because people forget or don’t know about the next point.


This step is one that many people do instinctively, but is sometimes missed by those who don’t understand its importance. Euan Semple wrote about this very well today:

We’ve all had that situation of having agreed to link with someone on LinkedIn and then second message they send is trying to sell us something. Or maybe we’ve been reading that influential industry blogger’s posts for years and, thanks to their easy going style, feel like we know them – but how would they react if we reach out and try to connect with them?

This is why lurking matters. Finding the people you want to connect with, working out where they spend time and watching how they behave. You need to learn the ropes, get to understand the rules and the etiquette of people and situations. Think about the person you are about to connect with. What are their challenges and priorities? What sort of language do they use? What is your motivation for connecting with them and is it mutually beneficial?

For many people, it is enough to listen. Nearly a decade ago, Jakob Nielsen drew together a number of strands of research to suggest that as a rule of thumb, 90% of participants in online communities merely observed the discussion. (Of the rest, 9% contributed occasionally and 1% were responsible for most of the contributions.) This 90-9-1 rule has been challenged more recently by researchers at the BBC, but their data was gathered by survey rather than from monitoring actual community usage.

Whatever the figures, lurking is a natural human behaviour. As we circulate round a drinks party, we listen to the conversations around us and familiarise ourselves with what is going on before joining any of them. And we only join in when we have something interesting to add. Listening skills are valued as a means of generating trust. The same should be true of lurking. Learning about a community by sitting respectfully and observing what it does and what the key norms are only helps when the time comes to join in.

Making connections and sharing

When the time comes to speak up, rather than listen, normal social convention requires that one adds some kind of value to the conversation. That is true online just as it is in the pub. Commenting on a blog post or joining a Twitter conversation is most meaningful when the original participants benefit and the remaining audience gets something they might not have had without the intervention.

This cycle of connection and reciprocation is common offline, and is reinforced by all sorts of social and implicit norms. It is often harder to express (let alone enforce) similar norms online, which is why trolling can become a problem. Online, it is also much more likely that there is no homogeneous audience. The troll’s audience is almost certainly completely different from that of the person he attacks.

I have no deep-seated aversion to ‘content marketing’ — after all, this blog is probably an example of the genre. However, there is a growing body of material that is pushed willy-nilly via various ‘channels’ with no real appreciation of the way other people interact in those fora, and with little engagement by way of conversation. I do have an aversion to that because it uses a social medium in an unsocial way, and thereby taints it.

[In January, I will be running a workshop aimed at PSLs, but possibly of wider interest, on good social media use. Sign up on the Ark Group website if you’re interested.]

Why your foundations matter

A couple of weeks ago, I challenged firms to think about what might be possible without resorting to technology. That post was based on an assumption about the nature of most law firms:

The tools, systems and attitudes of technology have to be imported into traditional law firms, therefore they are available to everyone without preference. (The status of technology within the firm is a relevant issue here, but I want to leave that for another time.)

This is that other time.

Every business is constructed around a core set of assumptions. Those assumptions include:

  • Purpose — why does this business exist?
  • Beneficiaries — for whom does the business exist?
  • Platform — what is the business built on?

The answers to these (and other) questions define the nature of the enterprise. Often they are unspoken, but generally there can only be one answer. A business might pretend to serve stockholders and customers alike, for example, but in extremis a choice has to be made between them. One group has to be favoured over the other.

No visible means of supportI want to look more closely at the third of these questions, especially in the context of legal businesses.

The traditional law firm could have a range of purposes, although some manage by committing vaguely to helping businesses and individuals with legal problems. The firm may exist to make a profit for its partners, or it may prioritise client service above partner remuneration. Most, however, are founded on delivering services using people with legal knowledge and experience. That is their platform. If you were to replace all the lawyers with different people, the firm would be a very different entity. That isn’t a likely occurrence, but firms that lose significant partners and other senior lawyers do collapse. We can see this also in the legal directories — The Legal 500 and Chambers and Partners compilations rank firms and lawyers.

It is instructive to look to a different sector for comparisons. In the car industry, a volume manufacturer may have some key personnel, but they are rarely crucial to the final product. Ford may have a carefully expressed design language, but the success of its cars depends more on the reliability and dependability engineered into them in the company’s massively automated production lines. Ford’s platform is a technological one — its people are much less important than technology in the final product.

Not all cars are the same — Rolls-Royce and Bentley depend on craftsmen to produce the finishing touches that mark their vehicles out amongst luxury vehicles. Without them, the product would have much less value in the market. The platform could also be a mixed one. There are high-end motor manufacturers like McLaren and Porsche where designers and high technology (such as composites and advanced gluing techniques) are both critical to the product.

Most law firms are more similar to Rolls-Royce and Bentley in that their platform depends on key individuals and a continuation of experience and craft. Those firms need to contend with the fact that the market values that approach to legal service much less than it used to.

Some of the new entrants into the legal market have done so with a completely different platform. Riverview Law is one of the most forward-thinking in this regard. They make it clear from the front page of their website that technology is at the heart of their work:

One of the key themes that differentiates us is the way we use dashboards, management information, analytics and visualisations to help in-house legal and related teams to make better and quicker decisions, manage risk, and evolve their operating models.

They even offer their technology to in-house legal teams.

I am sure the people at Riverview are really good at what they do, but it seems clear to me as an outside observer that the platform for the business is technology. The technology allows Riverview to provide a service that stands apart from what other legal businesses do. The people might come and go, but losing the technology would fundamentally change the nature of the business. No traditional law firm could say the same.

Another firm that depends on a technology platform is Inksters in Scotland. Brian Inkster and his colleagues have created a business around a set of cloud-based services that allows them to serve clients extremely effectively from any location. This mobility and flexibility sets them apart from other firms. The firm specialises in crofting law and other legal services for the widely-scattered and remote communities of the Highlands and Islands of Scotland, so their clients find it harder than most to get to a lawyer’s office. Inksters has offices, but they also have a ‘Flying Solicitor’ service, and they have provided ‘pop-up’ legal services in a wide range of different locations.

If Riverview Law is the legal equivalent of Ford, Inksters is more similar to the likes of McLaren or Porsche — using a blend of expertise and technology as the basis for a firm that can react quickly to legal need whatever the location. Both Riverview and Inksters depend on technology for their success, but Inksters has also stirred in a larger dose of legal expertise to create a unique recipe.

Riverview and Inksters are just two examples of new legal businesses built on technology foundations. There are others, and there will be more. That isn’t to say that all successful legal businesses must have such a foundation, but it is an indication of where growth will happen.

The problem for existing law firms is that they already have non-technology foundations — and you can only build on one platform. Most have bolted technology onto the work that they do, but there are limits to that approach. Some are starting to shift their work so that they can use technology in a much more fundamental way — DWF is a good example here. Over time, that technology could become so embedded in the way the firm works that it is considered part of the foundation. That is likely to be a long painful process, especially in a business where consensual decision-making is the norm.

Another approach would be to construct a new firm alongside the old one. The old firm could continue the traditional partnership, people-based model, whilst the new one made the most of new technologies and corporate structures. Over time, one would succeed (and it might not be the one with the technology foundation). For most traditional firms, this would be completely counter-cultural. Would clients care about that, or would they just gravitate to the legal service providers that best meet their needs?

Maybe it’s time for firms to start experimenting a bit more.

Who should be responsible for happiness?

I spent last week in a remote Scottish location, which meant that I could catch up on some podcasts that had backed up on my phone. As I listened to a few in succession, some interesting juxtapositions were thrown up. One in particular got me thinking about the balance of power and responsibility between individuals and organisations.

Strathossian ruinI would guess that everyone knows someone who is unhappy in their work, even if they aren’t themselves. There may be many reasons for this, but the prevailing trend seems to be that the unhappy owe it to themselves to find a way to change things so that they can become happier. (Or to manage their own unhappiness.) An old friend of mine, perhaps worn down from years listening to HR complaints, was robust in her assertion that people should leave if they didn’t enjoy working at the firm: “we don’t put bars on the windows.”

So, as I listened to the Thinking Allowed discussion of happiness and wellness, I was particularly struck by comments about the way that this individualistic approach has allowed organisations and even society at large to transfer responsibility for making things better to individuals. This is often dressed up as ‘agency’, even when people may actually have very little power to make real change, short of changing jobs.

A little later, on their excellent Shift podcast, Euan Semple and Megan Murray had an entertaining conversation about navel gazing as a key business skill. Jack Vinson blogged a key point:

The thing that struck me hard enough to do a quick blog post is the idea that some people get wrapped around the axel of self-improvement without thinking why.  On the opposite end are people who have no interest in self-improvement (but who are happy to point out situations in which they are unhappy).

I have always liked the idea that if I am upset about something / someone, it is because something inside me is out of kilter.  It is not the other person / situation is necessarily wrong, but my take on it has me upset.  In other words, it is my responsibility to figure out why that business meeting made me so angry, and then DO SOMETHING DIFFERENT.

I don’t disagree with Jack’s view that one should always consider whether there is something one could change about oneself. However, I am concerned that when organisations assume that people should always take responsibility, they are more likely to allow poor situations to persist.

People make decisions about difficult working situations for so many reasons that each may well be unique. They may stay because they have built up valuable support networks amongst colleagues and have no wish to let them down. They may have external commitments that make it hard to move. They may feel no such constraints. They may be natural disruptors so they drive change wherever they are. If the organisation has no interest in understanding people and the reasons why they are happy or unhappy, it has no way of knowing whether there are fundamental problems that need to be addressed at the organisational level. (This can produce stagnation, but may also allow unfettered change initiatives to flourish.)

It is time for the pendulum to swing back. By all means encourage people to take some responsibility for making the changes they need. But organisations also need to take more responsibility for being aware that people are unhappy and why this might be, and for making sensible changes to improve overall happiness.

Fortuitously, last week also saw the launch of a new tool that gives organisations a better way of understanding what is really going on. Cognitive Edge’s cultureSCAN can be used to take a snapshot of the way people feel about their work, or it can be used repetitively to test the reception of organisational change (for example). As a Cognitive Edge network member, I can work with law firms (and others) work out how best to use cultureSCAN and the information it produces. Please get in touch if you are interested in knowing more.

A summary of cultureSCAN is provided on the Cognitive Edge site, and I have excerpted it below.

Culture is a crucial part of most organisations’ success or failure – yet, given its complexity, is also one of the most difficult things to influence. The organisational culture, people’s behaviour and the narratives they share when they meet are all interwoven – co-evolving together.   Looking to understand the overall system and see which levers to pull is a futile – and mistaken – pursuit.

Instead anyone tasked with changing a culture must work to understand the narratives – the stories and fragments of meaning – that are exchanged each day in the many interactions that happen at the coffee machine, in the corridor and in meetings. Change then becomes a matter of amplifying the narratives that lead in the desired direction, dampening the ones that draw people away – and looking for opportunities to improve and innovate along that path.

Cognitive Edge’s cultureSCAN is a unique opportunity – a pre-configured tool for online and smartphone users to gather organisational narratives and understand the culture as it stands.

cultureSCAN is a culture-specific set of signifiers allowing users to signify audio/text/pictures quickly and easily (audio and pictures available only on iOS and Android apps).  It uses SenseMaker® – the only software licensed to use Cognitive Edge’s patented signification methods – meaning that organisations have the objectivity and scalability of quantitative data, supported with the insight and richness of qualitative micro-narrative material.

So it is easy to see – and prove – where the organisation is today, as well as delving deeper to understand why – and where it can be taken tomorrow.

Why do you want to ‘do KM’?

My recommendation to anyone new to knowledge management is to start by reading and reflecting on David Gurteen’s presentation to KM Middle East in 2011, “Don’t do KM.”

Despite David’s high profile, and the fact that this message has been repeated by him and many others over the past four years, I still see the same mistake being made. But it’s now being made at an organisational level, and that causes problems further down the line.

Here’s an example. A law firm has decided that it should have a knowledge management function. So headhunters are briefed to find someone to lead that function. Sadly, neither the firm nor the headhunters understand what is needed.

The firm probably has a sense of what might need fixing, but they don’t know what measures could be taken. The headhunters have a better understanding of the ambit of traditional KM, but may not be allowed any insight into the firm’s real needs.

The result: a role description that indicates how important KM is (“a strategic function”), but also lists various ‘information assets’ that need to be managed. In short, a description of KM that limits the function to pre-defined boundaries separated from the performance of the firm.

In reality, of course, a role description can be ignored. But it acts as an anchor. Presented like this, it is difficult for a new recruit to persuade the firm that they shouldn’t ‘do KM’. It also means that investment in change or in unexpected activities that would make a real difference are harder to justify.

By contrast, advertisements for leadership roles in business development and marketing are much more likely to refer to the need for things like “new and innovative approaches on winning business”, “driving forward pioneering initiatives”, or “distinctive client experience”. Even though firms may have a better idea of what might be involved in this discipline, they rarely dictate at the outset in detail what these roles should do. The result is that these recruits are trusted much more to lead the firm (not just their own teams) in the right direction.

Just as people with ‘knowledge management’ in their titles should avoid ‘doing KM’, firms should avoid thinking that they need KM. They don’t. They may need to use their knowledge better because they have identified a problem. That’s a much better starting point for recruitment. You don’t need a Knowledge Director or CKO just because everyone else has one.

Writing with respect

Recently, I have been helping a firm improve some of its marketing collateral. They had a really great message for their clients and potential clients, but it was hard to see because there was an expected way of doing things. When we moved beyond that template, we could produce something that actually expressed the firm’s value (and values) more coherently. Looking back, I think the key was making sure that the writing was done with respect.

Respect for time

Major junction (A7/A1), Edinburgh Lawyers read and write for a living. For most of them, a ten-page marketing document is short and sweet, especially when it is on a topic that interests them. More often than not, clients don’t have the same interest. If the message can be conveyed in two pages, it should be. If the document can be structured differently so that the important material comes first, it should. (And you need to be really clear about the meaning of ‘importance’. That has to be judged from the perspective of the reader.)

Imagine your readers have only two minutes or less to decide whether they care about your firm. What do you want them to learn in that short time? Your answer to that question may mean that you have to push the things you find interesting to the back of the document. If so, you must.

Respect for language

I am ambivalent about jargon. On the one hand, it can act as a useful shorthand between peers. On the other, it can act as a barrier to good communication. The linguist Geoffrey Pullum calls it ‘nerdview’:

It is a simple problem that afflicts us all: people with any kind of technical knowledge of a domain tend to get hopelessly (and unwittingly) stuck in a frame of reference that relates to their view of the issue, and their trade’s technical parlance, not that of the ordinary humans with whom they so signally fail to engage.

So lawyers should avoid using a legal frame of reference in their non-legal writing. (I’ll leave clarity in legal writing for another time.) But this could be an opportunity to demonstrate a connection with your audience’s knowledge. If you can comfortably and genuinely use their technical parlance, you should.

This has to be natural. Only use the technical terms if your lawyers use them in their daily work. Many do. If that comfort comes across in the document, readers will get it. Any discomfort will push your material into the uncanny valley.

Respect for your people

Law firms like to put lawyer profiles on their websites. Most of them shouldn’t bother, because their standard template removes all the humanity by reducing people to their contact details and a lifeless account of career history and recent work. Sadly, this approach often finds its way into marketing material as well.

In my experience, asking people about themselves produces very different results. Let that come across to your readers. What does that partner see as the high point of their work in this sector? How did that associate get to grips with the  tricky issues in that recent transaction?

I have seen some firms try this approach in combination with a standard template, especially when they what to show the more human side of their lawyers. This can make people uncomfortable: perhaps they don’t want to tell the world what they do at the weekends. Leave the template behind and ask open questions. Let the lawyers write their own account. Interview them and let their story come through.

Above all, respect for the reader

Marketing teams often struggle to get the attention of their lawyers. That is one reason why they resort to standardised documents and templates — they save time and effort. The result is often sterile, and lawyers know that. That’s why they don’t play along.

On the other hand, lawyers often spend a lot of their own time and effort making sure their clients get what they need. This isn’t just because that’s where the money is. Many (if not most) lawyers actually get a kick out of helping clients. If they see marketing as having the same aim, they are more likely to take part whole-heartedly.

Being more respectful may produce greater variety in your marketing materials. That is a virtue, not a weakness. The firm’s character can shine through, and your readers can decide much more easily whether it’s a character they like. Don’t be bland, because clients don’t want to find out too late that they have instructed a lawyer who doesn’t fit their needs.

If this interests you, and you’d like to have a longer conversation, please get in touch.

The reality of client ‘loyalty’

In my last post, I said I would come back to the question of client loyalty. It isn’t possible to state definitively what keeps clients with firms — each situation will be governed by a unique combination of events and actions. However, experience suggests that, amongst those elements, one or more of three key factors is likely to be at issue. Knowing and dealing with those will help firms (and their new competitors) understand and address their strengths and weaknesses within the future market. In the end, they may conclude that what looks like loyalty is no more than inertia. It is essential not to be complacent about that — inertia is rarely permanent.

2015-02-12 13.51.24-1

These observations are primarily relevant where firms have long standing relationships with clients with the expectation of a pipeline of work. Similar factors may be at play where the relationship is more intermittent or ad hoc, but I know much less about those.

The three factors that play a part in sustaining relationships between clients and their firms (whether a single firm or a panel) are the following:

  • Minimal relationship management
  • The 9x problem
  • Genuine trust

Relationship management

In recent years, some law firms have invested significantly in actively managing client relationships. On the other side of the fence, some of the largest clients have begun to extend existing vendor relationship management programmes to their legal advisors. This is atypical — for most businesses, the relationship with lawyers is much less important than that with other suppliers. Law firms value the client relationship much more, which is why they are right to invest in it.

A few months ago, I spoke to a former colleague who now runs a significant in-house legal function to see if he might need any help with knowledge issues in his team (or in liaison with his panel firms). I got a friendly, but firm, rebuff. As he saw it, his biggest problem wasn’t one that I could fix — he just didn’t have enough time to do everything the job demanded.

I think this is a common situation for GCs and in-house lawyers generally. I once started to sketch out on a mind map all the things that a GC might have to do, manage, or understand. The result is below (click for a bigger version).

IMG_3729.JPGI only have a partial understanding of the burdens of an in-house lawyer, so I have probably mssed many more things that concern them. This exercise was also done in the context of thinking about content published by firms for clients, so there is a bit of an imbalance. Notwithstanding these caveats, I think it is clear that GCs have very little time for active management of their external lawyers, except when a formal review of advisors is scheduled.

As a result of pressure on time and the low priority for legal supplier management, it shouldn’t be surprising that many clients are loyal to their law firms for no better reason than a disinclination to invest in change. Businesses without in-house legal support probably have even more inertia.

The 9x problem

Even if a client commits time and effort to reviewing existing relationships with advisors, there is no guarantee that they will value new providers properly. The Harvard academic John T. Gourville has studied the psychological reasons why new products or services don’t succeed as quickly as they might. Building on, amongst others, Daniel Kahneman’s and Amos Tversky’s prospect theory, Gourville suggested a rough rule of thumb for expressing the scale of the persuasion problem that new entrants have.

At the heart of this conundrum are two facts.

  1. People who use a particular product or service (consumers) will tend to overvalue it, by comparison with new alternatives
  2. People who produce a new product or service (developers) will tend to overvalue its benefits, by comparison with existing equivalents.

Gourville applied numerical factors to these propositions:

Consumers overvalue losses by a factor of roughly three.


Developers overvalue the new benefits of their innovation by a factor of three.

With this outcome:

The result is a mismatch of nine to one, or 9x, between what innovators think consumers desire and what consumers really want.

This is presented diagrammatically:


The 9x effect explains why innovative entrants into any market often fail to achieve the success they expect (at least initially). Incumbent firms with a traditional offering will benefit from their clients’ nervousness about novelty. The psychological factors are also relevant, but to a lesser extent, when a like-for-like exchange is proposed — any incumbent has an advantage even against an equivalent competitor.

The trust factor

When all else is equal, an firm with a particularly good relationship with the client (or, at least, those who are responsible for instructing lawyers) will have another advantage — the relationship itself.

One of the clichés of professional services is the notion of the ‘trusted advisor’. It is even the title of a classic book on the topic. One of the authors, Charles H. Green, now runs a consultancy focussing purely on developing trustworthy professionals. At the heart of The Trusted Advisor is a measure of trustworthiness based on four elements:

  • credibility
  • reliability
  • intimacy
  • self-orientation

These elements match the common academic division between cognitive and affective trust:

Cognitive trust is a customer’s confidence or willingness to rely on a service provider’s competence and reliability. It arises from an accumulated knowledge that allows one to make predictions, with some level of confidence, regarding the likelihood that a focal partner will live up to his/her obligations.

Affective trust is the confidence one places in a partner on the basis of feelings generated by the level of care and concern the partner demonstrates. It is characterized by feelings of security and perceived strength of the relationship.

(These definitions are taken from “Cognitive and affective trust in service relationships” by Devon Johnson and Kent Grayson.)

Most law firms now claim to understand their clients. Ultimately, such claims can only be assessed by reference to the clients’ level of trust. Lawyers (or any other professional) who work hard on knowing everything about their clients’ businesses, markets, and customers may succeed in being seen as credible and reliable — cognitive trust. Only those who show that they genuinely care about those things and provide security in the relationship will enjoy sufficient  intimacy and diminished self-orientation to justify affective trust.

The distinction between the two types of trust matters most in times of stress. When the relationship is tested (when mistakes are made, for example) it is unlikely to survive if only cognitive trust is present. This is because cognitive trust depends only on what is known or presumed to be known of the other party’s credibility and reliability. If those are demonstrably reduced, trust will disappear and the relationship will founder.

By contrast, a relationship rooted in affective trust can withstand failures in performance. Being good at the job is necessary but not sufficient as a foundation for affective trust to develop. Once affective trust is present, mistakes are more likely to be forgiven — at least until the point that confidence in the other party evaporates.

Newton’s first law of motion

An object that is at rest will stay at rest unless an external force acts upon it.

An object that is in motion will not change its velocity unless an external force acts upon it.

The three factors described here may explain why law firms might be confident about the loyalty of their clients. That confidence is misplaced unless nothing changes at all. In reality, many things may happen to overcome inertial loyalty.

Incumbent firms should, first of all, be wary of the assumption that any or all of these factors are present. Only those who engender affective trust in their clients, whose services are not three times overrated by those clients, and whose clients are disinclined to spend any effort reviewing the relationship may rest easy. Anyone who doubts the nature of their clients’ trust, who is nervous about the perceived quality of the service provided, or whose clients regularly examine the relationship closely should be very worried.

I suspect most firms are in the latter category. Whether they are worried enough is another matter.

Very few lawyers can be sure that the trust the client has in them is rooted in confidence and intimacy. It is much more likely to be based on an expectation of service quality that can be spoilt too easily. Even where there is affective trust, it is likely to be a bond between individuals. If either the lawyer or the client move, the relationship is likely to move with them. The firm cannot rely on it.

More significantly, any of these factors are irrelevant when the relationship is controlled by others. One such situation arises when the client’s procurement team manages and reviews appointments. That team is likely to be immune to the 9x problem, unbothered by trust issues, and ready to review relationships on a frequent and/or regular basis.

Client loyalty is by no means an immovable object, and the forces acting on firm/client relationships are almost unstoppable. The only same assumption is that inertia will be overcome. The only possibility of surprise is when and why it might happen.

Firms can reduce the element of surprise by actively working on improvements for clients, to match client need with the firm’s own capabilities (this doesn’t mean aping new entrants, since they will always have a head start). The situational awareness required to assess need and capability should in turn make it less likely that firms would fall short on any of the three factors described here.