THERE was never any thing by the wit of man so well devised, or so surely established, which (in continuance of time) hath not been corrupted: as (emong other thinges) it may plainly appere by the common prayers in the Churche, commonlye called divine service.
—The opening of the Preface to The Book of Common Prayer of the Church of England (1549)
Chapter 2 of my book Tomorrowland: Scenarios for law firms beyond the horizon develops the scenario that nothing fundamental changes about law firms despite the market crying out for change. (Chapter 1 presents the scenario that nothing fundamental changes because nothing needs to change.) And what blocks meaningful change in Chapter 2’s scenario? The title of the chapter says it all: “Lawyer psychology and the partnership structure.”
As the world embarks on its frustratingly sputtering and tentative—but, we predict, relentlessly accelerating—steps to move beyond the Covid-19 pandemic, it seemed timely to revisit the train of thought presented in Chapter 2. Why? If you subscribe—with us—to the hypothesis that, akin to the Global Financial Crisis of 2008/’09, the Covid-19 crisis will powerfully accelerate some trends and developments already in the works, then change may be a-comin’. Can law firms embrace it? And if not, what might get in their way?
I won’t spend much time today on the “lawyer psychology” part since I think it’s well-trod ground now for most of us. Compared to the rest of humanity—or even white-collar American professionals—lawyers rank sky-high on skepticism and urgency and low on resilience. This means they are distrustful, jump to conclusions, and take setbacks on the chin. These traits are highly functional in zealous representation of clients—that’s why they’re adaptive, and strongly selected for in lawyers who get to the top of the profession—but they can be disastrous when it comes to internal firm management, governance, and leadership.
These characteristics might be annoying (or even amusing in small doses) but essentially harmless in your typical corporation, run basically as a top-down, hierarchical organization, but the thesis of Tomorrowland’s Chapter 2 is that they can be dysfunctional and even destructive in law firms because of the partnership structure.
From Tomorrowland (p. 34, emphasis original):
I believe the partnership form as lived and experienced today in the vast majority of law firms is a mighty weight on the side of reinforcing the status quo—no matter how strong the rational evidence suggesting a change of course might be. Partnership exerts its potent gravitational pull towards the most conservative approach through the mechanism of instilling a conviction in every partner that he/she is an owner, therefore has a voice, and therefore should be able to veto any proposal posing an upset to their preferred and established way of doing things.
The first problem with partnership as an organizational form begins when law firms grow from small, simple monoline practices typically operating out of a single office to complex poly-functional organizations with expertise in dozens of specialty operating across a regional, national, or global footprint. The problem is simple: Partnerships don’t scale.[Some of our favorite clients of all time—you think we jest??—have been small partnerships of a dozen or fewer who have despite all odds being in favor of a tight-knit jolly band have chosen as their model the massively dysfunctional largeish family with centers of power in attics and basements and among young and old. Why, oh why? But they do it. Dysfunction and optimal function are not just numbers games. Still, you know where the betting man would put the chips.]
Our idealized notion of a tight-knit partnership draws on the metaphor of a family, and while you can have five close family members, or maybe even ten or fifteen, you can’t have 100, 500, or 1,000.
Evolutionary psychology and anthropology have actually confirmed numerical limits on how many people you can have a meaningful relationship with: The number is 150, a/k/a the “Dunbar number”—after Robin Dunbar, an Oxford scholar who stumbled across the number looking at the Christmas-card sending habits of English families (in the pre-social media era) and then began finding it everywhere as a cognitive human reality reflected in everything from the size of hunter-gatherer clans to army companies to, yes, Twitter followers and Facebook friends.
“So what?” you ask: “BigLaw today is in reality organized as top-down, centrally managed hierarchical entities.” Yes, to the extent that the trend of BigLaw becoming BiggerLaw seems relentless, but No if you’ve ever worked in even a smallish corporation. (We’ll come back to this momentarily.)
The gradual movement of BigLaw along the spectrum from Athenian democracy to United States Marine Corps is undeniable. But the top-down controls are highly selective; they’re not impinging on the autonomy of Type A professionals. This was once expressed succinctly and memorably to us by an impatient practice group leader as “You can have your own trial strategy but you can’t have your own billing policy.”)