I read with great interest Richard Moorhead’s blog last week entitled “Big Law. New Law. Ethical Risk”. I want to pick up one theme in my ongoing thesis that the model in which lawyers operate is broken. It’s the ills of the model and the lack of genuine creativity in fashioning an alternative that are at the root of the travails of struggling law firms. It may be that economic indicators are more positive as a generalization, but that will be of little comfort to practitioners large and small who face deeper structural challenges.
I want to play with the concepts of innovation and what it motivates or is motivated by. The idea that innovation is more likely to result in a greater emphasis on extrinsic motivation or introduce a cavalier risk taking approach to practice is one dimensional. There is a need to look more broadly at how intrinsic motivation can drive happiness, success and generate greater rewards. Yes, you read it correctly. I did use the word “happiness” in a blog about lawyers, law firms and structure! By starting the discussion with a question like “why?” rather than “what?” or “how much?” the parameters for debate change significantly. A little “why” goes a long way in working out what motivates lawyers (well some of them at least!)
The practice of law is a profession that is, in the views of many lawyers I speak to, akin to a calling. Granted not all lawyers would believe that there is a higher calling to be a hot shot deal maker as opposed to a champion of human rights. But that would be to render the argument to a binary form which doesn’t reflect the complex array of reasons why lawyers become lawyers and develop the beliefs they hold.
Innovation is also not binary – by which I mean it is not just about trying something “different” at the expensive of ethical practice. Innovation can be about the translation of concepts, values, practices, working methods, customs, structures, systems that already exist or that can be adapted from other parts of society. They need not simply be different for the sake of difference.
Innovation is as much about re-birth as it is about new life. I believe that there is a movement of change in the practice of law. A restlessness. The movement is most obvious from my conversations with “perspirers” and “retirers”. The former working very hard in a traditional and flawed structure towards the promise of partnership, the latter no longer required as young blood pushes for its share.
Why is it like that? Why can’t it be different?
The answer seems to lie in the structures within which lawyers practice – the vast majority of which are pyramid-shaped. That they are this shape is beyond this discussion but the apprenticeship model has a lot to answer for when interpreted into law firms in the 21st Century. The irony of the Pyramid model is that the risk taken is inversely proportional to the capital invested. That may be why some perspirers are questioning the value of a partnership which leads to shared liability, financial exposure, decisions made by committees or not made at all and inertia in the face of the need to change – fundamentally change.
There is in addition a growing body of academic work that points to the failure of extrinsic motivation when seeking higher performance (for instance the work of Dr Bernd Irlenbush at the London School of Economics). The days of the “carrot” and “stick” belong to an industrial age which is now behind us. The knowledge-based economy is more sophisticated and requires much greater autonomy and self-direction. In that regard I think lawyers have much to learn from Dan Pink’s now 4 year old, but still very entertaining, lecture on TED “The Puzzle of Motivation”. A good use of 20 minutes or should I say 4 units!
I encourage a proper debate about the extent to which lawyers and their firms could develop and innovate if they started with “why” and the intrinsic motivation for “going to work every day”. This could be based around a desire to innovate for the combined good of the lawyer and most importantly their client!