Teaching “The Drill,” 21st Century Style

The practice of law, in my opinion and experience, is not ultimately about knowing the law. It’s about delivering a service that solves a problem for a client, in which knowledge of the law is one of many important tools.

The father of the modern American law school curriculum, Christopher Columbus Langdell, had a different view. As Langdell explained in his casebook on Contracts, to him the essence of being a lawyer was nothing more than having a mastery of the principles of the law.

Langdell’s view, not mine, is the one embedded in the DNA of the modern law school, both in what is taught and in terms of the scholarship undertaken by law school faculty. The core methodology taught in most American law schools teaches students how to read and apply cases, developing the mastery of legal principles glorified by Langdell.

Just as significantly, the research conducted by law school professors tends to be inward looking and centered on analyzing rules of law within a largely closed system. While law review articles have moved away from the practitioner friendly compendiums of earlier eras, both modern normative and theoretical scholarship tends to turn on thinking about rules of law.

The real world processes of legal services get short shrift. That should change.

For practicing lawyers, as noted in an earlier post, the necessary and common methodologies go well beyond the mastery of legal principles and analysis enshrined as “thinking like a lawyer.” Perhaps the most important methodology is the process of moving legal problems from diagnosis through task allocation to resolution.

As noted in the prior post, lawyers at the firms I was at tended to refer to the process as “the drill.” What distinguished skilled lawyers from neophytes was not just the development of mature judgment but knowledge of how to break down a problem and process it.

This ‘drill’ is not taught as a methodology in law schools, and with very rare exceptions it is not studied by legal academics. This strikes me as odd, because it’s functionally impossible to really appreciate what goes on with legal rules if you don’t understand at some level the processes by which legal problems get sorted out.

It’s also unfortunate because some of the most pressing issues facing our legal system are not “better rule” issues but “better process” issues. The access to justice issue, for example, significantly derives from the inefficient processes by which legal solutions are delivered to ordinary consumers. Lawyers and legal academics tend to view the solution as more lawyers, but more lawyers who will employ the same outmoded processes used in the past. Imagine if the clothing industry tried to clothe us all by lobbying for more crofters with hand looms and more bespoke tailors.

There is an academic methodology, business process management, which studies and teaches the processes of delivering products and services. It’s already taught and studied in most business schools, and can be imported to legal training. At some of the more forward looking law firms, it’s being applied to legal process problems, and I expect that in one way or another (embedded in software that drives how matters get handled, embedded in firm processes, delegated to outside experts who design the processes for clients) a disciplined and formal approach to legal process management will become much more common.

There will be some resistance within the profession to this methodology because, as James Moliterno has observed, “the legal profession is ponderous, backward looking, and self-preservationist.” Interestingly, one of the points of opposition to Seyfarth Shaw’s use of advanced process management technology has been traditional minded clients, who resist looking forward instead of backwards.

This is all the more reason to equip the next generation of lawyers with this methodology, because if lawyers cede control of the modern process of solving legal problems, they become role players in a process designed and controlled by others, providing inputs rather than providing solutions. I think the public dimension of law practice will suffer if that happens.

Business process management got its start in the context of manufacturing. Sometime around World War Two, analysts began to break down the steps required to produce products. As time went on, often led by innovations in manufacturing that originated in Japan, wave after wave of approaches to improved manufacturing processes followed – total quality management, just in time manufacturing, six sigma, lean manufacturing, agile processes, etc.

In my opinion, there’s been a lot of faddish sloganeering in the marketing of these approaches, but that should not obscure the gradual emergence of a real methodology. By the turn of the 21st century, the impact of this methodology had transformed and radically improved manufacturing all over the globe.

By the 1990s, the concepts of business process management began to be applied to service industries. Service industries presented special problems – unlike manufacturing, service processes sometimes require reflective, contextual approaches, but as professionals grappled with the problems unique to service industries techniques emerged and evolved.

At its core – and it would take both more space and more expertise than I have to really do it justice – business process management is an iterative process. Analysts determine what core functions are involved in a manufacturing or service process (for a precursor, think of Adam Smith’s description of the pin factory). Manual processes are identified that can be automated and integrated with IT platforms. A look is taken at the end to end processes involved in producing a product or service, with an eye toward identifying process improvements. The flow of information is analyzed, looking to how and why information flows between stakeholders, with the goal of making those flows more efficient. The data workflow is analyzed. Throughout, the process seeks to measure, where possible (and it’s not always possible), the deliverables and quality of those deliverables, so that the process can go through more iterations. The discipline seeks to drive out not just waste but errors, delivering products and services that are both cheaper and more reliable.

It seems complicated, and it is. That said, undergraduate and graduate business programs routinely  offer courses in business process management. Major corporations such as IBM make the discipline a core component of how they approach what they do. There is a teachable and generalizable method that currently is applied from settings as diverse as auto manufacturing, software development, and delivery of financial services.

Again, I’m not an expert, but I think to do this justice in a law school setting would likely require at least a full year course, modeled on the courses already taught in business schools but modified for the legal services setting. A first course would provide the basics. The second course would delve into business process management in the context of services, and especially the services provided by lawyers. I would think such a course would take a detailed look at the processes by which modern lawyers should deliver both litigation and transactional solutions. Just as students learning law in law school do not leave school with all the law they will ever need to know, but rather a methodology for approaching how to learn and apply law, a course in legal service process management would anticipate a changing state of the art, but would prepare students with a methodology that would allow them to understand and participate in those changes.

Just as important as training students would be the creation of a cadre of scholars who study the processes by which legal services are delivered.

Legal practice in the US alone is a $150 billion per year industry. Critically, however, it’s not just a $150 billion a year industry. It’s a $150 billion a year industry with an important public dimension.

Legal rules are not self-executing. At the level where lawyers get involved (which is not, of course, all of where law matters) legal rules have an impact only because some kind of process makes them matter. Thinking about the rules without thinking about the processes that bring them to life misses an important part of the story.

Business process management – or here legal service process management – requires digging into how legal rules are implemented. It is a travesty that scholars in business schools study the processes by which widgets are made, but for the most part scholars at law schools do not study the processes, the ‘drills,’ of our legal system. The rule of law does just not just happen, but depends on processes of implementation. (If you think studying the rules of Civil Procedure is studying the ‘drill,’ I’ve utterly failed in my efforts at communication here).

Students equipped with this methodology will be equipped to deal with a changing world in which the discourse about service delivery will be far more demanding. Scholars who study the delivery of justice the way other scholars study the delivery of widgets will be equipped to inform what are now sometimes naïve discussions of how legal rules matter. I think it’s a change that’s overdue, and one that requires setting aside Langdell’s long outmoded view of what constitutes the essence of good lawyering.