Why Legal Innovation?

If you’re a lawyer or concerned with innovation in the delivery of legal services, you eventually brush up against an existential barrier: innovation is hard and there isn’t always a clear business case for it – so why bother innovating?

If you’ve been carefully reading news coverage and discussions about innovation in law, you’d be forgiven for being dispirited about the whole thing. For all the talk about the need for innovation in the legal sector, it sometimes seems it’s just that – talk. Drew Hasselback, writing in the Legal Post (“Lawyers not embracing opportunities from technology, Deloitte report finds“), outlines some of the lack of desire for innovation:

  • more than 50% of Chief Legal Officers don’t expect to change their investments in technology in the coming year
  • less than 50% of legal departments use benchmarks or analyze their legal spending
  • 90% of CLOs are happy with the service they’re receiving from outside counsel

Hasselback is practically reduced to begging lawyers to “grab the opportunities that are staring them in the face”.

John Grant (“A fresh start to your practice and mine“) penned a dispiriting tale about his efforts to bring legal project management and process improvement to a large law firm. Spoiler alert: it didn’t end well, and not only was he let go, but his position was, um, “retired”.

Back in January, Mitch Kowalski discussed the release of a paper written by a McGill student bracingly entitled “The Illusion of Innovation at Canadian Law Firms”. Based on a set of interviews with law firm associates, partners, and managers, the paper concluded as follows:

  • Associates and senior management at law firms have the perception that their organizations are innovative; but this does not align with the reality that very little is practically being done by way of innovation; …

  • There is a fundamental lack of leadership in innovation, incentives to innovate, and structures and channels to promote innovation in law firms.

Lurking in the background of all of this is something of a hoary chestnut from the good folks who spend time thinking about change management: about 70% of all change initiatives fail.

In short:

  • lawyers aren’t all that enthusiastic about meaningful innovation
  • clients of lawyers don’t seem to be too concerned about asking their lawyers to innovate
  • there’s a really good chance that significant efforts at innovation are going to fail

It can sometimes seem like the only folks who seem taken by innovation are people who have a direct pecuniary interest in peddling “innovation”: consultants who get paid to natter on about innovative change and entrepreneurs who are trying to sell an innovative product. Spend enough time among NewLaw aficionados, and you’ll eventually detect a sentiment which underlies almost every conversation: bewilderment, shading into frustration, that too many people are just too content with the status quo.

If the lawyers don’t want to innovate, and the clients aren’t interested in forcing the lawyers to innovate, and systemic innovation initiatives are probably going to fail, it’s worth asking the question: Why bother to innovate? Why be an advocate for legal innovation at all?

(A caveat: I’m limiting this discussion about legal innovation to what I’ll short-hand as “big firm” innovation – meaning innovation which is relevant to medium-to-large firms and their clients, meaning mostly, but not always, “corporate” clients or clients who have legal needs that occur as a result of the operation of a business. That’s a very different matter than innovation in the court system and “personal plight” legal services. In those cases the access to justice issues are so obviously compelling that I don’t think the motivation for innovation needs to be articulated.)

There are instrumental reasons why we might innovate – it might offer competitive advantages, for example. (To quote from the Canadian Manufacturers & Exporters publication The Business Case for Innovation, “Innovation is critical to sustaining business competitiveness and in improving productivity”.) But those reasons seem relatively removed from the legal market at the moment – law firms aren’t failing because of a failure to innovate (if anyone has any evidence to indicate that they are, I’m all ears), and I’d be utterly shocked if any law firm client made the decision to hire a firm (or continue retaining a firm) solely or even primarily based on the innovation practices of the firm.

We could construct an argument which instrumentalizes innovation through the vector of clients – innovation by lawyers is desirable because it furthers the interests of clients, we could perhaps even be so bold as to argue that innovation is ethically required of lawyers because if a lawyer successfully innovates, service delivery to the client will be cheaper, faster, and better. Well, maybe. That will almost certainly be the result if the innovation initiative succeeds, but it is often the case that innovation efforts fail. Failure might be its own reward, or it might be a necessary step on the road to success, but if you’re innovating because you want to better service your clients, odds are you have a long, hard road ahead of you, with little obvious pay-off in the short- or even medium-term.

But I want to advance a different argument: innovation as an end in itself, as its own good, as having instrumental value for the innovative lawyer on its own terms. Making that argument requires a bit of a reorientation – rather than thinking about how to “innovate” or “be innovative”, we need to focus a bit on what “innovation” is. I’m turning in this regard to the work of Canadian scholar Benoit Godin, who has inquired into the history of the concept of innovation (you can access some of his work on the topic here). What Godin highlights for us is that the contemporary understanding of the concept of “innovation” (roughly, that it is almost always an unalloyed good and has some kind of relationship with technology) is of relatively recent vintage (largely emerging after World War II). Of perhaps even more interest, the polarity of the concept has switched a few times over the last couple of thousand years: sometimes it has had positive connotations, but for long stretches of the West’s intellectual history “innovation” was regarded as describing a negative occurrence (Godin artfully describes “innovation” as in some eras being the “secularized term for heresy”).

I want to pick up on a couple of meaning of “innovation” identified by Godin: innovation as something akin to “spiritual renewal” and innovation as “improvement”. If you look at contemporary definitions of innovation (examples: businessdictionary.com, Merriam-Webster, dictionary.com), they tend to revolve around notions of change or newness or novelty – but Godin highlights that innovation can carry connotations of betterment. And that improvement can be directed both internally and externally – innovation can entail improving processes that you work with, but it can also entail improving you.

When we innovate we seek to improve on some dimension of our flourishing. We might innovate because we seek to make a process more efficient so that the gain in efficiency frees up time for us to spend pursuing some other interest or spending time with our loved ones or we innovate because the end result will bring satisfaction or happiness to ourselves or others. But what’s critical to understand is that while our attempt at innovation might fail, even in that failure we have improved – we have learned practical things (such as knowing that this particular course of action is unproductive) and we have done something, which is in most cases better than doing nothing. By seeking to introduce innovation we improve our faculties and deliberative skills, and we act in a way that seeks to improve our own condition and that of those around us. (Which hints at the fact that innovation has a teleology or direction – if we were going to introduce a regressive change, such as moving from using Excel to forcing people to use only paper and pencils, that wouldn’t be innovation in its proper sense of change leading to improvement.)

Don’t innovate because it will make you more money – it might not. Don’t innovate because someone has said it’s the cool thing to do. Don’t innovate because innovation always succeeds – it doesn’t. Innovate because innovation strives towards betterment – and in doing so, it will improve you.

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