Correcting The Legal Industry’s Bad Turn On Lean Thinking

It may not be neurosurgery, but it’s close

I need to understand who is teaching lean. Most of the people who “teach” lean in the legal industry have little experience implementing lean. They have read books, consulted, taught, and advised, but they haven’t been on the front lines doing thousands of hours of lean. And that, my friends, means they don’t really know lean.

Those who teach lean in the legal industry today do so mostly from books. That means they are teaching lean based on what a professor or consultant (who also did little or no actual lean implementation) wrote. In other cases, they teach lean based on training received from someone who learned lean from someone who read books, or who learned lean so far removed from the original notions of lean that what they teach resembles lean in name only. There also are a few who teach lean by referring to modern day Toyota practices (built on 70 years of experience), another path to disaster.

At this point, you may wonder why I’m making a big deal out of this “they who teach have not done” situation. So, let me put the problem in terms that may give you a more visceral understanding.

Suppose you had a brain tumor. You go to a neurosurgery practice. You are told you may select the surgeon who will perform the operation. These are the candidates for the job. Who would you choose?

Neurosurgeon 1. She has never done neurosurgery, never watched someone doing neurosurgery, but she has read several books by individuals who described neurosurgery (though they too had never done neurosurgery).

Neurosurgeon 2. She has witnessed a few operations, but never done one herself. But, she has talked to some professors who wrote books about neurosurgery, though again they had done little or no neurosurgery themselves.

Neurosurgeon 3. She actually has done a few operations, though what she did was based on reading books. The operations did not come out well, but she does have experience. She also has spent time coaching others who have done neurosurgery. And, she has read some articles about neurosurgeons employing the latest techniques.

Neurosurgeon 4. She has thousands of hours doing neurosurgery. She learned neurosurgery from neurosurgeons who helped develop the techniques used today. She trained with those surgeons, doing hundreds of hours of surgery under their guidance. She has a track record of hundreds of successful surgeries.

Now, you may think I’m exaggerating. But, having watched the industry for many years, seen the presentations by “lean” thinkers, listened to their guidance, and talked to lean experts, I would say I’ve underplayed the issue, not exaggerated.

In many ways, this bad turn in lean teaching is understandable. Lean thinking came into the U.S. in the 1980s, so most individuals teaching lean in the legal industry today were not involved with law, and certainly not involved with lean, when it hit our shores. Indeed, most did not stumble upon lean until well after the beginning of the 21st century, after lean had gone through Americanization. Those lean teachers never learned lean in its native, manufacturing environment, and have had little or no experience employing lean in a service environment.

The second challenge is that most of those who teach lean in law have never had the opportunity to learn lean by doing it at an organization where they work, rather than consult. Those of us who learned lean from the engineers who developed it at Toyota, were put through hundreds of hours of lean training under the guidance of sensei (teachers) during which we developed and implemented process improvement activities. Those who teach lean in law did not have the same chance. They also did not have the chance to learn under sensei who themselves had thousands of hours of lean experience.

To understand and employ lean, you must live with it. You must see it, touch it, experience it on a day-to-day basis where you have skin in the game. Lean is more like learning to play the piano, or to be a chef, or to fly a plane, than it is like watching a movie. The first three require active participation, practice, living through failures, and experiencing the craft in many settings. Watching a movie is a passive event that requires no skill on the part of the viewer.

How Bad Turns Hurt All Of Us

Still, why should you or anyone care about the bad turn of lean in law? As long as they teach you the basics, you can figure the rest out for yourself. You are, after all, a Lawyer.

Learning how to use lean incorrectly is the same as learning anything incorrectly, or, better yet, learning incorrect law. It doesn’t just put you at square one, it puts you in negative space. You have now been trained to do things wrong.

This is happening in the legal industry today and it is setting the industry back. At conferences, workshops for students, and in private settings those who don’t know lean are teaching novices how to do things incorrectly. In effect, those “teachers” are increasing the problems with processes in the legal industry (and then they post pictures on Twitter, further exacerbating the problem). The final step comes when well-meaning journalists write articles about lean, perpetuating many of the myths.

To go back to the neurosurgery example, it is as if neurosurgery teachers championed trepanning as practiced in Renaissance times. After a while, everyone is drilling burr holes in the skull to let out the evil spirits, because that is what they were taught. Meanwhile, the real neurosurgeons are aghast at what the “book taught” neurosurgeons teach.

There Is A Better Way

What to do? Here are my suggestions for how to learn lean in a way that will benefit you for the rest of your practicing career. The key is to remember that learning lean, or for that matter learning any methodology you will use to deliver legal services, puts the onus on you to learn the proper way to employ the methodology. You owe that to your clients.

  1. Be very picky when choosing a lean teacher or mentor. There are (maybe) a handful of individuals in the legal industry who know lean thinking. Do your due diligence before selecting a teacher or mentor. How many hours does the person have doing lean (not teaching, not consulting)? How did they learn lean (books, teachers — and who were those teachers)?
  2. When listening to presentations, check the credentials of the presenter not just his or her title. As I’ve written before, we have a serious problem in the legal industry today. We have celebrity presenters who have style, but lack substance. Don’t be blinded by fancy titles. Dig deep into the background and experience of the presenter before accepting what they say (or be prepared to have your lean efforts go in the wrong direction).
  3. Be prepared to become a lifelong lean student. Lean takes many, many hours employing the techniques to learn. You learn lean by doing, by participating in kaizen events, and by working with experts who can guide you. It requires patience, an open mind, and a willingness to learn new ways of doing things. (It does not require knowledge of technology.)
  4. Don’t let someone else read the books and tell you what they say, read the books yourself. While you want a teacher or consultant who learned lean by doing, you also want to understand the theory and principles that underlie lean. There are hundreds of books on lean today and you should take the time to read some of them. You will find that most of them address lean in the context of manufacturing. Some of them give the basics of lean thinking, while others focus on particular aspects of lean. The key is to learn the basic principles and then consider how those principles could be applied in your practice or organization.
  5. Be prepared to have a mentor work with you on process improvement events. Can you read a book on lean, understand the words, and follow the diagrams? Sure, but you won’t be learning lean. You need a teacher or mentor who has honed their eye through participating in thousands of hours of lean events. I have heard many lean “teachers” carefully explain how to change a process, and in so doing they have made the target process twice as wasteful. Lean requires knowing how to apply certain principles in a wide variety of situations and having the “eye” to separate waste from value.
  6. Lean is not about technology, doesn’t require technology, and often achieves more without technology. Toyota, the auto manufacturer that is considered the originator of lean (the Toyota Production System), is the least automated of the major car companies. Lean is not about how to use technology. Lean is about reducing waste and respecting humanity. At various points in your lean journey, you will run into constraints — points where simple technology solutions will achieve more with less waste than manual steps. You can process improve my handwriting all you want, but I can write faster and more legibly using a word processor. When you hit those constraints, technology may be an option.

There Is Reason For Hope

The legal industry has largely escaped the decades-long trend towards higher efficiency, better quality, and lower cost. That isn’t news. But, no one can evade the inevitable forever. The move away from law firms and even lawyers is well underway. It hasn’t reached a fevered pitch and many say it never will. It seems clear, however, that unless the legal industry gets serious about operational excellence (e.g., process improvement, project management, metrics) it will continue to lose ground to alternatives.

Employing operational excellence in the legal industry has never been about the difficulties of the methodologies involved. It has always been about changing the attitudes of individuals who learned to deliver legal services the traditional way. As disruptors from outside legal training show they can deliver legal services more efficiently, those who continue to resist will find themselves with fewer clients and fewer matters. The great transformation of the legal industry may be from those who can’t do more for less, to those who can.

Editor’s Note: This article published with permission of the author with first publication on Medium – Algorithmic Society.

Posted in: KM, Legal Profession
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