The Kowalski Bible on Lawyer Conservation

Everyone loves a good story. Numerous studies show that people are more likely to learn and retain information told in the format of a story, probably a vestige from the primary means of relaying information through most of human history.

So what about the story describing the imminent doom of the legal profession as we know it? Mitch Kowalski, who joined the Slaw team this year, just released a book this year which tells this tall tale.

Avoiding Extinction: Reimagining Legal Services for the 21st Century relates a fictitious account of an innovative and visionary law firm, Bowen, Fang & Chandri, PC (BFC), who implement best practices that allow them to outperform their traditional competitors.

The book is divided in three parts. The first relates a narrative of an in-house counsel, reviewing tendering bids from competing law firms. This lawyer is dissatisfied with the status quo, as are many in-house clients in the real world. Kowalski is likely drawing on his own legal background, which includes an in-house role, to execute this context. The billable hour reserves a special place in Kowalski’s nine circles of legal hell, with one of BFC’s competitors billing 29 hours in a day for one of their partners.

By providing the perspective of one of the major consumers of legal services, Kowalski is able to demonstrate to lawyers how outdated their model is without sounding preachy or having the reader react defensively. We all know some big firm lawyers who will inevitably react defensively to any accusations that the way they have been doing things is destined to fail. They have been profitable in spite of their approach to legal services, not because of it.

The second part of the book conveys the account of a new hire at BFC. Like all new lawyers at BFC, he is a senior lateral hire with some experience, but deeply jaded about the profession. In fact if BFC doesn’t work out he’s contemplating quitting the law entirely. Through this new employee’s orientation and training, Kowalski is able to highlight many of procedures and approaches that BFC employs to be “better, faster, cheaper,” including outsourcing and extensive use of knowledge management.

Although the young lawyer is initially skeptical his mentors within the firm are able to disarm most of his concerns within short order. The ongoing conversations mirror the types of dialogue that we constantly see in the bar by those resisting change. One of the best things about this book is that it is footnoted to references in actual business practices for the reader who remains cynical and wants to investigate further. Even more resources are detailed in the appendices, including extensive information about cloud computing, one of those topics where lawyers seem to express considerable resistance.

This is also one of my favorite parts of the book, because it explains why law firms need to employ techniques like project management and Lean Six Sigma. These have long been some of my passions for reform in the legal profession, based on my management education and experience before law, and the disappointments I experienced when entering it. BFC is the kind of place I would like to work at, and maybe it’s no surprise that an “Omar” makes an appearance in the book at page 65. I often refer to advancement in the legal profession as more of a “chronocracy” than a meritocracy, because time (like face time and billable time) governs the profession more than quality does. BFC believes this approach creates a culture of waste, and provides an alternative by selling results, not time.

The third part is also the shortest chapter, and is relayed from the perspective of a new member of the board of directors. BFC employs a unique governance structure, possibly inspired by Kowalski’s Institute of Corporate Directors (ICD.D) certification and education at the Rotman School of Business. The real purpose of this part is to look to the future of BFC, which is the future of the future of the legal profession. This type of vision usually requires a telescopic lens, but might also be closer than we expect.

My initial response to Kowalski’s book is that he wrote about the practice that I’m trying to build, or at least the closing vision expressed by BFC’s CEO at the end. None of the founding partners at BFC felt they fit in big law. All of them being visible minorities from immigrant parents, and the CEO is openly gay.

Our practice has amazingly been able to surpass some of the benchmarks Kowalski cites. BFC reduces office size from from the industry average of 800-900 sq. ft. per lawyer down to 300, and pass those savings on to clients. We have been able to keep it as low as about 250 so far through the use of virtual lawyers and assistants and shared work space.

The one fatal flaw of BFC is that they are adamant about not hiring younger lawyers. This is the one place where BFC retains a connection to the chronocracy practices of the traditional legal past (and present), by focusing exclusively on the year of call as a measure of quality. I do agree with Kowalski that the costs of training young lawyers on a file should not be necessarily passed on to clients, and bills should not be padded with the inefficiency of experience.

This limitation thwarts Kowalski’s vision from universal adoption, because it relies on the training and experience being provided by BFC’s competitors. Fortunately he anticipates this critique in the final part, and notes that BFC can monitor trends and ahead of others if they begin to shift to a different model. But the inability to incorporate training and mentorship into BFC also leaves it ineffective in addressing one of the most significant crisis facing the legal profession today.

We have yet to resolve how we pass on our legal knowledge and skills to the next generation of lawyers when so many of them are leaving it in droves, and even legal education is being hailed as a poor investment. The practice of the future will also have to identify and recognize lawyers who have the skills and insight that BFC claims to train their new hires in. They will actively recruit lawyers with MBAs, practice management, and project management backgrounds, even if they are younger years of call, to help build the knowledge management and institutional memory necessary to execute these complex structures.

The vision of what this structure will be, and more importantly why it must be so, is the reason why Kowalski’s book will inevitably be a landmark piece in legal literature for industry disruption and reform. He has already received the 2012 Fastcase 50 for innovators, techies, visionaries, and leaders in the law, and is heading to England this fall for a private tour introducing his book to the U.K. through Riverview Law, a fixed-priced legal services business. I believe some of the changes there are well ahead of Canada and the U.S., and I agree with Kowalski when he told me,

The UK is the epicentre of innovation in legal services and so, to have UK legal innovators commenting favourably on my book is a huge honour.

 Karl Chapman, Chief Executive of Riverview Law, said,

Mitch has some key messages about trends in the market generally and, specifically, for organisations about how they select legal partners, conduct Requests for Proposals, and drive the behaviours they want from legal businesses. We were keen to bring Mitch to the UK so he could share his thinking with a wider audience.

Back on this side of the Atlantic you can get a copy of Kowalski’s book from the ABA, Ben McNally in Toronto, and through Indigo before the end of the year. It’s a fast read, under 200 pages, and is the perfect primer for the lawyer who doesn’t even realize they’re about to be extinct. Kowalski runs a writing center, so it’s no surprise that it’s a fun read too.

And if you need even more of a teaser, check out his 2009 article in the CBA National Magazine, 2020 Vision, which provides a fictitious speech by a BFC CEO who likens the challenges of the legal profession to the paper newspapers who were too slow to adapt out of an abundance of caution. She states that BFC has fundamentally changed the rules the game by critically evaluating every component of their service delivery systems,

Do this not only for the benefit of your clients, but for your own survival. The legal terrain has shifted, and there is no turning back.

Rumour has it that the National is still getting letters from young lawyers who read this speech, asking how they can apply to BFC for a job.