How much longer will lawyers resist the idea of best practices? Perhaps they can learn from baseball.
I frequently write about “evidence based law“, an extension of the idea of “evidence based medicine.” Last week, Billy Beane (GM of Oakland A’s), Newt Gingrich And John Kerry co-authored an Op-Ed in the New York Times (24 Oct 2008), How to Take American Health Care From Worst to First. This article could portend what lawyers may someday face:
“In the past decade, baseball has experienced a data-driven information revolution. Numbers-crunchers now routinely use statistics to put better teams on the field for less money. Our overpriced, underperforming health care system needs a similar revolution…. Remarkably, a doctor today can get more data on the starting third baseman on his fantasy baseball team than on the effectiveness of life-and-death medical procedures. Studies have shown that most health care is not based on clinical studies of what works best and what does not — be it a test, treatment, drug or technology. Instead, most care is based on informed opinion, personal observation or tradition…. [A] health care system that is driven by robust comparative clinical evidence will save lives and money”
Lawyers, like doctors, rely too much on tradition, hoping for good outcomes. This is true for both law practice and firm or department management. Lawyers do not systematically compare notes within firms / departments much less across them. Legal best practices are typically defined by what the top NYC and London firms do because they are the top firms. Would evidence-based analysis support this tautology? Might it be true that firms outside the top tier have, in fact, developed better substantive approaches to law practice? How would we know other than by tautology and the propensity of inhouse counsel to rely on top firms for their brand names?
Lest lawyers view this fearfully, the authors note: “Evidence-based health care would not strip doctors of their decision-making authority nor replace their expertise. Instead, data and evidence should complement a lifetime of experience, so that doctors can deliver the best quality care at the lowest possible cost.” Substitute “lawyer” for “doctor” and BigLaw partners can rest easily.
Developing the evidence would be hard: characterize matters, compare outcomes, and analyze processes. The legal profession should have dialogue about improving how it practices.
Think this is fantasy? Think again. See the professional services management consultancy KermaPartners article Moneyball Indeed. It describes empirical research to help a large law firm identify and attract “graduate recruits who not only have the credentials to enter the firm, but also possess the ‘stuff’ to thrive at the firm” based on statistical analysis. This analysis sets the stage for the firm to hire lawyers who will be significantly more profitable to the firm.