The Underwear Gnomes of Law

Depending on your age and preferred cultural touchstones, the title of this column is ether instantly recognizable or a complete mystery. If it’s the latter, the video below, excerpted from a 1998 episode of South Park, should shed some light.

The underwear gnomes’ profit strategy has become a widely cited meme in the intervening years, owing to its effective illustration of the shortcomings of many strategic plans. The premise sounds interesting; the outcome sounds great; but the opaque middle step, whereby the interesting premise is somehow converted into bags of money through mysterious processes, is entirely glossed over.

I’ve been thinking recently about how often that missing middle step comes up in the legal system. Specifically, I’ve been noticing a recurring disconnect between the initial premise and eventual outcome of many traditional systems and practices in the law. We engage in a particular activity; we assume that this activity will deliver a desired result; but we never make clear the mysterious processes by which this transformation occurs, and we wonder why we fall short of our goals. ”How exactly is this expected this to work?”
Here’s an example, one of the legal system’s oldest premises: the adversarial system. We all learned in first-year law school that the adversarial system, by which two advocates zealously advance arguments in favour of their respective parties before an impartial trier of fact, is the best way to arrive at the truth of a matter, and thereby at justice.

Framed as an Underwear Gnomes plan, the adversarial system might look like this:

Phase 1: Zealous advocates hammer away at each other before third-party neutral.
Phase 2: ???????
Phase 3: Justice!

Because of course, as we all know, the occasions when the adversarial system results in the actual delivery of justice are frequently coincidental. More often, gaps and weaknesses in either the initial premise or its execution — the two sides are not equally well-represented or well-financed, the trier of fact is mistaken or biased, etc. — preordain that the result will fall short of our hopes. The devil is in the details, and the details are often ???????.

You can look almost everywhere in the legal system and find Underwear Gnome thinking:

Phase 1: Immerse new lawyers in heavy-workload billable-hour law firm environment.
Phase 2: ???????
Phase 3: Trained Associates!

Phase 1: Reward your firm’s lawyers on the basis of individual sales and billing metrics.
Phase 2: ???????
Phase 3: Success!

Phase 1: Increase legal aid funding and issue more legal aid certificates to lawyers.
Phase 2: ???????
Phase 3: Access to Justice!

Phase 1: Laterally hire expensive, high-powered rainmakers from other law firms.
Phase 2: ???????
Phase 3: Profit!

I’m sure you can think of other examples of Underwear Gnome reasoning in your corner of the profession, and if so, please share them in the comments below.

It’s long past time we re-examined some of most cherished assumptions about how our legal system works. Specifically, we need to assess our fundamental professional premises and ask of each one: Is this premise actually resulting in the outcome it’s supposed to be delivering? If not, where is the breakdown occurring? Is the premise sound, but the execution lacking because we never filled in the details? Or was the whole idea bogus from the start?

We’re not doing a great job on making legal services more accessible, or making associate training effective, or making law firms more effective and profitable. Sure, maybe it’s just that we’re not trying hard enough. Or maybe it’s because all we’re really doing is stealing people’s underwear and waiting for the profits to roll in.