The Future of the Legal Profession

I wrote a blog piece in January 2011 on why a Partnership may not be the best model for a law Firm, and I touched on an issue know as Pluralistic Ignorance.

The gist of that article is that some partnerships are inefficient because when it comes to driving a law firm forward or doing “non-lawyer” work, such as marketing, or being innovative, no one wants to take any action because they think that someone else will do it, so nothing gets done.  Nothing useful anyway.

(Yes, there are a number of firms that have partnership models and do grow, but they tend to have a nominated leader or quasi-dictator; but in general, in these recessionary times, a partnership model is not the way to go)

I had thought, in researching that article, that pluralistic ignorance in itself prevented law firm growth, but there was always that niggling suspicion that something else was at play and it wasn’t until I read some of Edward Banfield’s book, The Moral Basis of a backward Society, that I realised what it was.

Banfield’s book describes a fictitious town in Italy called Montegrano, where the people share a great deal of trust with their own family members but they are highly suspicious of anyone outside of the family network and so they were unable to build businesses that were bigger than an extended family unit. 

Because of this inability to grow, they became stuck. They had placed a ceiling on what they could earn as a community and it was entirely self-generated.

Banfield established that Montegrano's predicament was entrenched in the ”distrust, envy and suspicion displayed by its inhabitants' relations with each other”. Fellow citizens would refuse to help one another, except where their own personal material gain was at stake. 

Many attempted to hinder their neighbours from attaining success, believing that the others' good fortune would inevitably harm their own interests. Montegrano's citizens viewed their village life as little more than a battleground. Subsequently, what transpired was social isolation and ultimately poverty.  An inability to work together to solve common social problems, or even to pool common resources and talents meant that they were stuck in a progress-resistant culture.

But to take this in context, I could see that within law firms - even quite large firms - that lack of trust in something bigger than a family unit survives and inhibits growth.

I’m sure you’ve heard or read the phrase “operating within silos” as it relates to legal firms.

Quite a lot of firms operate as large entities but in reality they are nothing more than a collective of small firms or silos with a partner as the “head of the family” and they tend not to trust other silos or “families” even within the same organisation.

That lack of trust is what really inhibits growth.

When it comes down to it, partners in (some) law firms don’t really trust their fellow partners. They may say that they do, but their actions betray otherwise.

Partners meeting are often fractious affairs where individuals hold on to their people and fight to make sure that any work they or “their people” have done is correctly billed to their department. This sort of attitude does not bode well for customer service and also inhibits cross-referrals within the firm.

Yet Trust is the glue that binds commerce. Business relationships are forged in trust and when people working together communicate effectively and co-operate with each other, they build up trust.

Trust creates the perfect environment for growth to take place and the lack of has the opposite effect. 

As a culture, the law is and lawyers are, naturally suspicious.

Anything that is said, suggested or especially written needs to be corroborated. Every action they undertake as lawyers needs to be exact, certain, precise. 

To be otherwise is to invite criticism, a complaint or even a lawsuit, so this manufactured tendency will naturally permeate through all aspects of a lawyer’s life; and dealing with fellow partners is no different.

There therefore tends to be suspicion seen in every action no matter how small and this in combination with pluralistic ignorance is the real reason that many law firms fail to grow or even fail to get themselves to a position where they are even ready to be taught to grow.

The firms that can encourage a truly trusting culture will be the firms that go on to dominate the legal marketplace.

I wrote another article stating that if you were to start a law firm from scratch, now, today, there is no way you would want to follow the partnership model; but if you did, and you decided to use the traditional methods, you would at least have a name for it…and here it is…I give you… Montegrano & Co.

As you may know from reading some other articles in this blawg, I'm not a great fan of Partnerships.

Let me qualify that by saying, I'm not a great fan of partnerships where they involve more than say, 5 people.

I never really knew why, but for me there was always something sluggish about using a partnership as a way to conduct a modern business – and despite the incessant carping of some older lawyers, a law firm IS a business.

Using a partnership model seems to delay decision making akin to wading through treacle.

Anyway, I came across a story about the old proverb, Too Many Cooks Spoil the Broth.  The short story was in an old Reader's Digest that I was flicking through whilst sitting in the Dentist's waiting room. 

I don't have the date of the article as I left the magazine behind and it was only after a few days that things began to gel for me.

The story was about a murder that took place in New York in 1964.

The gist of the story is this: on 13th March 1964 a young woman called Kitty Genovese was walking back to her flat in Queens, a borough of New York City, when she was attacked and stabbed by a total stranger. 

She managed to break away and scream for help but the attacker came after her and attacked her again and stabbed her to death.

The whole attack allegedly took 30 minutes.

Two weeks later on 27th March the New York Times printed an article describing how a large number (apparently as many as 38) of respectable, law-abiding citizens had seen this attack and done nothing about it. 

No one had called the police and on investigation, the police were unable to understand why so many witnesses had done so little.

The story was picked up by other journalists and of course grew arms and legs and the conclusion was that people no longer cared enough to get involved and was a damning indictment of modern society and an example that society was breaking down etc etc proper Daily Mail stuff.

However, when I searched online to remind myself of the details of the murder, I simply searched under the name "Kitty Genovese" and up popped lots of links referring to what psychologists call The Bystander Effect but is also known as Genovese Syndrome.

The Bystander Effect is a psychological phenomenon that refers to cases where individuals do not offer help in an emergency situation when other people are present.

The probability of help has in the past been thought to be inversely related to the number of bystanders; in other words, the greater the number of bystanders, the less likely it is that any one of them will help.

In the last 30 years or so there have been numerous experiments to demonstrate the Bystander Effect in a variety of settings and the conclusion is nearly always the same; the more people there are, the less likely it is that the victim will get help.

So how does this impact on how a partnership works?

Well, with the information provided so far, it doesn't.  But after a little bit of digging into some other aspects of the Bystander Effect, you might begin to agree with me.

There are many reasons why bystanders don't react to emergency situations, but social psychologists have identified two major factors;

(1)     The principle of social influence; and

(2)     Diffusion of responsibility

Social influence is when people monitor the reactions of other people and where they work out in their minds if it's necessary for them to do something or nothing. 

Since most people do nothing, the conclusion is that it's better to do nothing.  Psychologists call this "social proof" or more imaginatively "pluralistic ignorance".

Diffusion of responsibility is where everyone assumes that someone else will intervene.  There is a hierarchy effect where people think that someone more suitable or better qualified (in their minds) will act or intervene.

And as someone else is probably going to step in then there's no reason to do so. Feeling less responsible means that they can refrain from acting.

Other obstacles to acting – bear in mind that this all happens in a split second in a bystander's mind – is that there are inherent fears;

The fear that someone better qualified might appear and therefore acting quickly could cause them to lose face.

They may also be afraid of being superseded by a superior helper, offering unwanted assistance, or facing the legal consequences of offering inferior and possibly dangerous assistance.

Out of all of that, the phrase I like best is "pluralistic ignorance".

In pluralistic ignorance, people privately disdain but publicly support a norm or a certain belief, while the false consensus effect causes people to wrongly assume that most people think like them, while in reality most people do not think like them and only on rare occasions will they express their disagreement openly.

Thus no one may take any action, even though some people privately think that they should do something.

When I talk to a number of partners of law firms, quite a lot of them say that they would prefer changing to a Limited Liability Company but they think that the other partners would disagree.

The reality is that they could all be struck by pluralistic ignorance.