Can Lawyers Innovate? Is Litigation Support Essentially Innovative?

During his keynote at LTNY, Jeff DeGraff explains why lawyers find it hard to innovate in the delivery of legal services. In contrast, Chuck Kellner explains why successful businesses in litigation support and eDiscovery are essentially—and continuously—innovative.

Jeff DeGraff is an innovation guru. He explains to people how they can innovate and what are their impediments to innovation. He does it in a big way. He teaches, trains, speaks and has written some well-known bestsellers like Making Stone SoupInnovation You, and Competing Values Leadership. He is an entertaining and dynamic speaker and we were lucky to have him as a keynote speaker at LegalTech New York 2015.

Innovation in Lawyering

Jeff directed his remarks mostly toward the lawyers. He teased out a number of reasons why lawyers find it hard to innovate in the delivery of legal services.

Innovation requires experimentation, and experimentation contains risk of failure. There’s not much room for failure in the delivery of legal services. The work product must be precise or the consequences can be severe.

Innovation also requires conflict or contention as a breeding ground. The large legal enterprise is typically not much of a democracy or an open-air market for new ways of doing things. Lawyers in that environment who can actually innovate are very high up, wield outsized influence on their partners, and own a certain creative impatience. Younger lawyers looking to innovate will typically look for like-minded colleagues and join smaller practices to pursue their visions.

Finally, when times are good, there’s no incentive to innovate. The incentive is to maintain the status quo, to keep the hours up, to keep the receivables up, and to keep it going. The lack of an innovation “skunkworks” going on during times of great success can sometimes leave the enterprise poorly prepared to face leaner times.

In his comparisons to studies in other industries, Jeff says that despite the impediments, innovation can and will come to the delivery of legal services. Medicine can now deliver diagnostics through relatively inexpensive applications of low-level AI (Artificial Intelligence). What’s to prevent consumers of legal services from becoming more self-serving and more self-sufficient? Because the cost of legal services is high, the incentive for experimentation is built in. Jeff talked about the delivery of many kinds of services moving from self-serving through “translational” to “interactive.” (For more on the theory, you’d have to be there to hear him speak, or go get the book.)

Innovation in Litigation Support

By contrast, it seems to me, the industry that supports lawyers who are litigators is constantly innovating. Jeff didn’t direct many of his remarks to us, but if we look at the principles teased out above, we can see why the successful businesses and careers in litigation support and eDiscovery are essentially—and continuously—innovative.

First, because legal services are expensive, there are incentives to find speed and efficiency where there is otherwise slowness or dependency on expensive people. All of the litigation support constructs of culling, filtering, narrowing to the most defensible subset of data to review, mastering the ergonomics of review – all of these are continuously innovated to manage the time and cost of finding important evidence among thousands or millions of items of information. People in our industry take the time and spend the money to experiment because the payoff of the “next big thing” can be huge. Even the “next little thing,” or the new and improved process yields an immediate, if not brief, competitive advantage.

Second, because legal services need to be precise and are risk-adverse, there is a strong incentive to apply the newest and most expensive technologies to find, track, measure, audit and check. Our mechanisms for predictive coding, concept analytics and statistical sampling are pointed at the risks of missing important information and catching inadvertent mistakes.

In closing, here is one helpful hint and one important observation from Jeff.

Innovate early, often, and off-Broadway. Meaning, always keep experimenting, but not on your most important clients or consequential projects. Remember that innovation requires experimenting and experimentation requires a risk of at least some failure. If you’re not failing with your innovation, at least sometimes, you’re really not innovating very much. Just don’t do it where you can’t afford the risk.

Creativity is the number one desirable attribute of leaders. While some may point to other important traits, Jeff says, many of the needs for those traits can be delegated to subordinate positions. The innovative enterprise and the innovative industry have creativity in leadership.

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