Putting theory into practice

As I indicated last month, student feedback on Practice Management (PM) on the Diploma – quoted feedback comes from the 2002-03 Diploma at the Glasgow Graduate School of Law (GGSL) – contains mixed messages. It is hard to please all the people all the time. One theme does emerge, however, and that is for less time theorising about “common sense”. One student put it somewhat optimistically: “This course should have been (and could have been)… covered in about two hours.”

Students may be right that less time should be spent on theory. They also have a point that teaching “common sense” may be insulting to their intelligence. But it would be wrong to dispense with theory altogether. Less time on theory does not mean no theory at all. 

If students are given an overview of PM within an analytical framework, this may then be applied in a series of practical case studies. In this way, students will flesh out detail, learning systematically about practice through example. The case studies would refresh and enrich the initial theoretical framework which would progressively operate as a mnemonic.

An analytical framework would satisfy the needs not only of Diploma students, but also the needs of trainees and newly qualified lawyers. All need to be encouraged to self-generate answers and not rely entirely on checklists, micro-routine and anecdotal advice provided by others. Young lawyers need to develop sound, habitual patterns of thought in the formation of their own unique professional personality.

I wrote last month of what might be called the hidden persuaders involved in PM training. In the profession’s laudable efforts to prepare the next generation for the business and consumer-led demands of today and tomorrow, it is important to preserve lawyers’ traditional intellectual vitality and independence. Specifically, teaching and training in PM should aim to combine disciplined thinking with professional intuition and creativity; foster a holistic approach; encourage individualism and character; and distinguish the fundamental from the fashionable.

Simpler than it sounds

A framework for PM, embodying these principles, is actually very simple and does not take long to explain. It can be shown in two diagrams and even these can be merged into one.

PM is usually broken down into elements: e.g., Time Management, Risk Management, Client Care and Law as a Business – the PM subjects at GGSL, derived from the Law Society of Scotland’s materials. The latter two labels could do with refinement. The somewhat touchy-feely “Client Care” could be more aptly referred to as Client Relationship Management. This label has some existing connotations (“CRM”, etc), but “Client Management” would hardly strike the right note!

“Law as a Business” might be improved upon as a label by applying a bit of theory. What sort of business is law? Fundamentally, law is a knowhow business. (For a great deal more on this, see Stephen Mabon, Making Sense of Law Firms (Blackstone Press, 1997).) This is better understood in the information technology age. This means it is about managing, and generating an economic return from, the resources of people and knowhow. So this fourth element may be more accurately (and neatly) referred to as Resource Management.

Of course, in practice the world does not fall into these tidy elements. Under each heading will come a multitude of issues, all inter-related. This is illustrated by the first diagram:

The elements all overlap. Indeed, the material in common (represented by the shading) may well exceed what is specific to each element. Rather than each element being separate, each label represents a different perspective on the same issues. One student recorded this epiphany: “The first, and most important (to my mind), lesson is that these [concepts] are intrinsically intertwined and overlapping. An effective risk management strategy is good client care and proper management of case and file workload is essential in maintaining a high level of client care and at the same time certainly exposes your firm to less risk.”

This also throws into relief that, whilst from one point of view certain issues look important, from another they will appear less so. From a different perspective, the relative importance may be reversed: the demands of time recording may loom large in one context and yet shrink to insignificance in the face of a business development opportunity or, for that matter, a potential professional indemnity claim. Similarly, maximising fee income may be paramount in one context, yet, from another angle, less important than respecting a client’s interest or an ethical principle. This is a holistic way of looking at things.

Two dimensions, three essentials

The next thing to note is that all the elements are two-dimensional. The first dimension is that of the individual lawyer and the second is that of the firm or organisation. Lawyers have to think in both modes. What should I be doing? What should the firm be doing?

The next step is to discern the common operating principles a lawyer or law firm ought to apply to all aspects of PM. The answer is represented by the second diagram. This diagram represents the disciplined cycle of thinking of a practising lawyer in relation to three imperatives.

First, whatever the issue, a lawyer’s mind should start with “Compliance” issues. This is meant in the very broad sense of all those issues that relate to the regulatory, ethical and contractual terms that define a lawyer’s (or firm’s) status, capacity and context. This embraces all issues arising from the regulatory regime (e.g., Law Society, FSA, money laundering and so on), standards of professional conduct and competence, professional indemnity cover, through partnership agreement terms, network affiliations or (for an individual) contract of employment, and includes the legal and professional consequences of relationships with third parties, e.g., engagement terms with clients. These issues are all potential “show stoppers”. Hence “Compliance” has to be the starting point of the cycle.

The lawyer next turns to Business issues. These have in common that they relate to optimising economic return from regulatory and contractual status and context. Not all of these issues will be purely financial, but this is certainly where attention will be focused on fee arrangements, work in progress, debtors, workflow, profitability, business development and so forth. The key point is that these issues come after Compliance considerations.

To complete the cycle, attention turns to the Practical, i.e., the means and techniques of delivery, as well as other more subjective matters like personal satisfaction and work/life balance. Communication, team building, action lists, good diary habits, project management and other day-to-day actions will be prominent from this perspective.

The 12 in 1 model

This habitual cycle of thinking is repeated for, and throughout, every client relationship, every engagement, and every management and administrative process.

If the triangle is combined with the circles in one diagram, the result is a comprehensive paradigm for PM, represented by the third diagram.

This consolidated diagram, fully explicated, generates 12 separate subjects (by applying Compliance, Business and Practical applied to each of Time Management, Client Relationship Management, Risk Management and Resource Management). This provides a taxonomy, curriculum and mnemonic for PM all rolled into one. The framework also comes with a dynamic mechanism for thinking through the complex and unique challenges of legal practice.

Who knows, Diploma students might even find this a useful two hours’ worth of theory!