What does it mean to change how you do something?
(Sunrise.) Even if the process is as inconsequential as choosing a new route to walk your dog through the neighborhood, it still invokes questions and challenges. While the rising sun is no longer in my eyes, the dog questions all. Will I still get to walk through the park? What about the squirrels in the tree around the corner? Will I still get to see them?
A change such as this requires no more or no fewer resources than before. This new experience only really affects the two of us: one happy to be able to see where I am going without squinting into the sun, the other confused but willing to see where it takes us.
On the spectrum of designing and managing change, this is as easy and low stakes as it gets.
- No change in resources involved.
- No lengthy design phase.
- No need to seek approvals from senior leadership or risk committees.
- No extensive training sessions.
- No need to redocument procedures.
In sum, the barrier to starting your proof of concept (POC) exercise is merely to turn left instead of right at the end of the driveway. But, still, you (and your faithful companion) feel the change. You feel the inertia of a thousand previous walks that followed a different route to the same end. You know it should not matter, but it does.
Defining the Reality of Legal Process Change
Any process change has potential benefits and consequences, but few process changes have as much inherent drive to retain the status quo as organizational legal process changes. Legal processes are, above all else, an exercise in repeatability and defensibility.
Those who have built and guarded such process workflows rightly consider their primary purpose to protect organizational risk. While budget controls are real, legal processes typically are shaped over years (if not decades) to perform a particular task at an incredibly high level of quality and consistency within very strict time parameters.
For many of these historic legal processes, spend efficiencies and improvements are welcome around the margins, but the focus remains on risk, repeatability, and speed. Much of this stasis is driven by the complex web of internal and external entities that support or benefit from the process.
For a legal matter as seemingly straightforward as responding to a third-party subpoena, the internal resources involved may include: attorneys and paralegals, information technology and security teams, eDiscovery teams, public affairs teams, securities reporting teams, senior leadership, and even, potentially, the board of directors. That list, of course, may be supplemented by external legal and advisory resources.
Starting from a Position of Caution
(Caution.) While many legal processes involve only a small segment of those resources, no legal process change is taken lightly by an organization. This maintains our starting position for any legal process change as one of extreme caution.
That caution is the natural reaction to even considering moving from the relative confidence and comfort of the present to an unknown future. That caution is a uniform and very appropriate starting point. Again, legal teams are the guardians of risk and reputation. We are trained to foresee untold risks as we look out into the fog of the new.
So, how does legal process change ever get past this point? Or more accurately, why are legal teams increasingly pursuing fundamental process changes despite this natural position? The short answer is that we are truly seeing a fundamental evolution in how legal functions are perceived and valued within organizations and, in parallel, how legal leaders are empowered to guide change.
Risk and reputation are still paramount, but legal leaders are receiving no small encouragement to see that their teams are ripe for exploring change as any other corporate function. This has created an environment in many organizations where the connotation of “change” is moving from a presumptive evil to a potential good. That evolving environment is now allowing (if not mandating) a more proactive exploration of the possibilities of new paths.
Exploring Change Through Cautious Curiosity
(Curiosity.) Okay, my senior leadership team is now more comfortable with change, and I may even have “implement one significant legal process change” as a part of my annual performance objectives for my practice group this year. Where does that lead?
The caution remains, but the curiosity is allowed to bloom. What would it look like to pursue a change that is not just incremental? Can we possibly consider a change that does not merely bolt-on a bit of automation or GenAI tech to the workflow that has been in place for ten or twenty years?
This cautious curiosity can now explore much more fundamental legal process changes and test to find those that deliver true long-term value. The standard of quality, repeatability and timing do not change. This is not an exercise in dumbing down a legal process but in building one that is optimized for the technologies and talents that will allow it to evolve and thrive as the organization moves forward.
These considered changes will, inevitability, raise significant questions about issues as far-reaching as selection of ideal outside counsel teams, firm fee models, aligning talents and incentives to encourage sustainable success. Most critically, these changes will often raise questions about the talents and structure of internal legal teams themselves.
Without alignment and support, this may rightly lead us back to a place of significant caution. That is to be expected. But if true change is desired, it must consider all aspects of people, process, technology, and structure while optimizing for risk, repeatability, spend, and speed.
Building Confidence in New Legal Processes
(Confidence.) As legal professionals, our confidence most often only comes from having survived previous chaos and calamity to arrive at the other end, realizing that we actually accomplished something profound. Our nature is to endure being out of our zone of comfort, all the while pushing back to the calm center.
We must recognize these tensions as we establish the confidence to not just try new things, but to reject the stasis of a permanent status quo. Only one new path in ten may survive our caution and critique, but that one may establish a better path. Through this rigorous cycle, we can enable our legal teams to evolve and thrive despite constant headwinds, and move forward, even when the route is unfamiliar, toward another sunrise.
Andy Cosgrove
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Andy Cosgrove is the Chief Strategy Officer of TCDI. He is responsible for guiding the development of innovative technologies and strategies that enable TCDI clients to mitigate legal risks and minimize costs in the areas of eDiscovery, information governance, cybersecurity and data privacy.
Andy brings over 20 years of experience as both outside counsel at AmLaw 100 law firms and, most recently, as in-house managing counsel leading information governance and eDiscovery teams at Juul Labs and General Motors. Learn more about Andy.
