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Can Lawyers Live in an Approximate and 'Good Enough' Universe?

Lawyers like precision. As a result, they often let the perfect be the enemy of the good. The new economic reality may force them to live with approximation and ‘good enough.’ 

First, a story. After graduating NYU Law I worked for Bain & Company as a strategy consultant. Consultants, like lawyers, consume much information. Unlike lawyers, however, they accept ballpark estimates. So I was in for a surprise when I subsequently switched to practice support for a law firm.

I needed to know the average rate for documents reviewed per review. The firm had no data so I asked several lawyers. All said “I don’t know” and said they could not estimate the rate. OK, I thought, time for new tactics. I asked some other lawyers, this time saying “I’ll assume the review rate is 100 docs/hour” to which they replied “no, that’s way to high”. OK, I said, then I’ll assume it’s 5. No, that’s way to low. Back and forth we went – all the conversations converged to a rate between 10 and 15 docs/hour. (This was 1989, paper docs, with issue coding.)

This was a valuable early lesson for me, one not taught in law school: for lawyers, silence is better than a chance of being wrong. Silence is better than approximation. The thinking and fear that underlies this mindset – I’ll call it ‘perfection thinking’ – has consequences.

And I’m not sure we can still afford it. Clients often want to know if there are any major risks: “let me know if there are any boulders in this playing field.” Lawyers often hear that and think they need to find not just the boulders, but also the pebbles. The fear of being wrong – and of malpractice – runs deep. ‘Perfection thinking’ makes it hard to approximate, to apply to 80-20 rule, to guide in the right direction but with some imprecision.

And this, I think, is a big reason corporate legal costs are so. And why consumers can’t get affordable legal service. A Nation of Do-It-Yourself Lawyers, a New York Times op-ed piece by two state court chief justices, on 2 Jan 2009, argues that the profession should support “unbundled legal services and other innovative solutions — like self-help Web sites”. Unbundled here means limited-scope representation. “Perfection thinkers”want absolutely correct answers, always; most people, however, would settle for just a bit of guidance.

My hypothesis is that firms that overcome ubiquitous ‘perfection thinking’ will do better. They will be the ones to communicate clearly with clients to learn the client’s risk parameters (not their own). Of course we need general counsels who think this way too. They must understand the risk their companies are willing to take. How else can they limit the demand for lawyering? Of course, all this means living in the universe most of the rest of us inhabit – one full of approximations and imperfections. Welcome to the real world.

  1. Richard Granat

    This post is right on target. I have said elsewhere that often what consumers want is a “good enough” result and don;;t want to spend thousands of dollars on legal fees. Law schools teach “perfection thinking,” but law schools are out of touch with what clients really want in terms of the price/value relationship.

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  3. Carlos Leyva

    Ron,

    Brilliant post. I think you have nailed as only an industry insider could. As paradoxical as this may seem (well only if you have never been exposed to the economic reality of legal fees) “perfection in most cases is NOT GOOD ENOUGH” because it often ignores the client’s economic reality.

  4. Steven Levy

    This is a great point, Ron. Risk exposure is something every project manager is (I hope) familiar with; it’s an easy concept, and attorneys should learn it too. Basically, it’s the likelihood of the risk multiplied by the loss if it comes to pass — and it’s the tool that lets you think about risks in a comparative way.

    The concept of loss aversion is also in play. Attorneys are taught to be highly sensitive (averse) to loss, which distorts their view of risks. By understanding loss aversion and risk exposure, people — not just attorneys — can make more knowledgeable decisions in regard to risks.

  5. Josh King

    This is a great post, and illustrates a common problem lawyers have – insensitivity to differences in risk. I’ve blogged about this fairly extensively from the GC perspective, starting here: http://corporatetool.blogspot.com/2009/02/lawyers-and-risk.html