I recently spoke with D. Casey Flaherty, a prominent and leading voice in the legal innovation space. He is a former outside and inside counsel, best known for the creation of Service Delivery Review (SDR). He seeks to continually improve the delivery of legal services. He is currently Principal at Procertas.
What was the impetus behind your interest in legal innovation?
I am both ambitious and lazy. I can’t stand drudgery. I feel guilty charging clients for it. Indeed, at the beginning of my career it would cause me physical pain because I had just been in a terrible car accident. The longer I worked, the more I hurt. So I devoted energy to devising ways to get more done in less time without sacrificing quality. Indeed, I agree with Bill Henderson that we make a mistake when we frame ours as primarily a cost problem instead of a productivity problem. Costs problems can be ‘solved’ by discounts. Productivity problems demand systems.
What is the biggest misunderstanding you think currently exists when it comes to legal innovation?
That innovation part is the hard part. It is changing behavior that is hard. There is plenty of innovation. But it doesn’t scale because it is, by definition, different. Different is risky. Different is outside our comfort zone. To resolve our cognitive dissonance of wanting to change while staying the same, we have a bad habit of conflating innovation with robot magic. We want that perfect piece of software that will seamlessly integrate into our current workflow so we can achieve superior inputs from the same outputs without training, process redesign, or implementation dips. We make that mistake over and over because it is a comfortable way to think about the world.
If a lawyer wanted one key takeaway when it comes to legal technology, what would you say?
That it is not yet self-driving. It can get you from Point A to Point B but still requires precise user inputs. Some of the most powerful, flexible software in the world is already accessible on your standard issue desktop or laptop. But it will do you little good if you treat it like a typewriter with a glowing screen.
What do you see as the current role of legal technology within the context of law practice and what do you see that role as being in the next five years?
I see it as essential and underutilized. We still mostly think about the ways that technology can help us solve problems one smart lawyer at a time. We don’t spend nearly enough effort on institutionalizing legal knowledge and embedding it in systems. I have no idea if that will change much in five years. I would like it to and am working towards that end. But, as with so much in the legal industry, the safest bet is that five years from now will be much like today, only more so. This is as true about the incremental increases in the use of technology as it is about the incremental erosion of the traditional law firm model.
Understanding that this remains a hot topic of debate within the legal industry, what are your thoughts on whether the time has come for the US to take an approach like the UK (and, to a lesser extent Canada) to law firm ownership and structure?
I’m in favor of it. But I’m not sure the empirical evidence bears out that it is quite the innovation accelerant that many of its proponents seem to believe. At the same time, we’re finding ways around it in the USC. Insourcing combined with the rise of law companies has many of the hallmarks of an alternative structure that can be properly capitalized and offer appropriate incentives to non-lawyers (a term I despise but, given its use in various rules, one that makes sense when discussing regulatory matters; when describing actual legal service delivery, my preferred term is “allied professional”)
If you could advise a young attorney or a recent law graduate who wants to follow in your footsteps, what would be your advice?
First, don’t follow in my footsteps. At the very least, reexamine your priorities because you have poor taste in role models.
Second, it is hard to overstate how lucky I’ve been. I am being interviewed because I have a reputation. I was able to establish a reputation because I had a platform in the form of a great in-house position. I was considered for that position because of a random social connection through a neighbor. I passed muster because of my BigLaw pedigree, which I assure you would have been lacking if I had gone to law school two years later than I did (which almost happened—I was living comfortably in Beijing and decided to come home because SARS hit. SARS was not scary. But it was boring. The entire city shut down, and I decided I might as well go to law school. My roommate stuck it out and did not return to the States for a decade).
I don’t lack agency. I made tough calls about my career path. I took risks. I put in an insane amount of work (I fondly recall my last day off. It was October 2016. Not a brag. Don’t be that person.). I travel constantly. I have both a solo consulting day job and a tech start-up (they’ve never both gone well at the same time). I give lots of talks. I write lots of words. Much of it for free.
We rightly focus on hard work instead of luck because hard work is the part of the success equation we can control. And there is much to the idea that hard work puts you in the position to take advantage of the opportunities luck may provide. But I can’t stand the notion that there is some surefire path to success—i.e., that those who do not achieve success must be deficient in some way (grit, smarts, savvy). I know amazing people who’ve never caught a break. I know mediocre people who are obscenely successful. I believe it is vital to take chances while acknowledging that things may not work out. I celebrate the person in the arena whether or not they emerge victorious. Which brings me to…
Third, commit to do something worthwhile. The interested do things when they are convenient. The committed do them even when are hard. If the combination of merit and luck puts you into a position to actually make a difference, do it. That means taking real chances and reconciling yourself to the possibility of failure. It might not work out. Do it anyway. I’m not saying this because I believe it will make you successful (many people are perfectly comfortable and content without ever taking any real risks). I am saying this because I am constitutionally incapable of being satisfied with the status quo. Yet I’m not delusional enough to think I can change it on my own. I welcome fellow travelers. No one should try to follow in my footsteps. But there is no reason our paths can’t cross.