To change legal process, focus on outcomes

We all know legal issues can be difficult; with friction, bottlenecks and tricky regulatory issues slowing everything down. But does it have to be quite so difficult?

Denis Potemkin is a consultant, legal innovation enthusiast and founder of majoto.io.

An increasing number of us in the legal sector believe that many processes remain far more complicated than they need to be. 

Some complexity is unavoidable: laws regulate most things in our lives, and our lives are complicated! Contracts in particular have to define and handle our relationships in business and in life, often as part of complex frameworks - and that’s before you even consider the human element. Some things have definitely become easier; a startup looking for a fundraising tool, or a business looking for flexible legal resource or a more efficient way of doing contracts will find platforms and new-style firms that didn’t exist only a few years ago. 

William Gibson said: ”The future is now - it’s just not evenly distributed”. New platforms, systems and approaches have affected some practices but not others. The benefits of improvements in legal processes aren’t yet taken up by everyone. Exacerbating this is what I call “system overload”: people and organisations are overwhelmed by new tools, systems and processes which they need to learn and embed. The problem is that innovation and technology projects are often set in motion without simplicity as an overriding objective. No wonder that the (cumulative) result can be too complex to drive real adoption and engagement.

Processes should be constructed first and foremost with the desired outcome as the main driver

No lawyer required? Focus on outcomes

There are many reasons why slow change and complexity persist in legal, but much of it derives from a couple of traditional assumptions that we’re only just starting to shake off. The first is that a legal process always needs a lawyer, or that a lawyer is best placed to lead it. That assumption is being eroded fast. We only need to look at all the business teams self-serving low-risk contracts to understand that lawyers aren’t always needed.

The second is that a lawyer’s primary obligation is to address risk - it really is the habit of a lifetime, and it’s difficult to overcome. That singular focus on risk tends to drag everything down complex granular rabbit holes. But making things more complicated is seldom the right answer for a business colleague who’s trying to move fast. Balancing the risk mentality with a focus on outcomes is the key to overcoming this.

Processes should be constructed first and foremost with the desired outcome as the main driver. For example, is it acceptable to have something completed with 80% certainty in one hour, or 99% certainty in a week? Lawyers’ natural risk aversion will gravitate towards the 99% option, but the reality in risk terms for commercial colleagues is that 80% is often more than good enough, especially if it’s faster and avoids legal bottlenecks. Outcomes may be legal, commercial, social or otherwise. You may have a hierarchy of outcomes. I challenge organisations to put simplicity at the top of that hierarchy.

Platforms that enable this kind of outcome-focused approach are always going to win when it comes to adoption. There are tools existing today that provide general-purpose NDAs, for example, for free online - OK, they aren’t exactly tailored to your specific situation, but do they need to be in order for you to achieve the right outcome? Maybe your needs are more sophisticated, but do you need a bells-and-whistles CLM system, or something leaner that results in faster adoption because it’s simple?

Transforming - with purpose

The mantra we’re all familiar with by now insists that we get the people and the process right before technology. I’d add ‘purpose’ before we even get to the people and the process. Unless the purpose is defined, well understood, and engaged with, it’s likely that every subsequent stage of the project will fall short of its potential, or fail. That purpose should hopefully be more than just solving a problem, but framed around positive change, with a clear message as to why this is happening at all, and how it can make people’s lives better. (I credit my friend Kevin van Tonder for this concept of purpose).

Many legal processes remain rooted in old, inefficient, uncollaborative behaviours, as much as we try to change them. Behaviours are the final missing piece of the puzzle

Failure to do this at the outset explains why so many projects end up in a no-man’s-land of underadoption. After a couple of years of procurement and planning, a new system or process lands - and is almost entirely ignored, because people aren’t engaged with the purpose or it was never defined. They might adopt parts of the solution, more out of obligation than any real desire, and end up using a fraction of the actual functionality available.

Behaviours old and new

Even for the teams and businesses that understand all of this, making it actually happen is stubbornly difficult. The reason for this is that many legal processes remain rooted in old, inefficient, uncollaborative behaviours, as much as we try to change them. Behaviours are the final missing piece of the puzzle.

Business contracts are an obvious example. Lawyers slip reflexively into Word, emails and PDF. When negotiating, the default is to fire off a template to the other side, or a detailed mark-up of their paper. Yet we know it’s more effective to align and collaborate in a phone call or meeting, rather than in static documents that you shuffle around via email. 

Lawyers know all of this, but still default to Word and email. It’s the easy, lazy thing to do. And one of the first questions that lawyers looking for solutions often ask of new vendors is “does this export to Word?” - often for no real reason other than ‘to have a Word copy’. I wonder how often there is an actual outcome that requires this to be the case, rather than a reliance on familiar, uncollaborative behaviours and a fear of holding the counterparty to a better ways of doing things.

The good news is that the advantages of breaking out of this mindset, and focusing instead on outcomes, are huge. To get there, it’s going to take a whole lot of work, but there are big gains to be had by starting with a brave purpose and better behaviours.

Denis Potemkin is a consultant, legal innovation enthusiast and founder of majoto.io.

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