Jason Barnwell is the assistant general counsel-modern legal at Microsoft Corporation. He is a technology attorney who is passionate...
Daniel W. Linna Jr. has a joint appointment at Northwestern Pritzker School of Law and McCormick School of Engineering...
Microsoft’s Trusted Advisor Forum was designed to ask this question: Do clients need to actively engage with their law firms to drive innovation in legal service delivery? In this episode of Law Technology Now, host Dan Linna talks to Jason Barnwell about the Trusted Advisor Forum and how his team at Microsoft is working to build the practice of the future. They discuss the many aspects of Jason’s role and give insight into how innovation, diversity, and use of technology in the processes of law can lead us into the future.
Jason Barnwell is assistant general counsel, legal business, operations, and strategy at Microsoft Corporation.
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Daniel Linna: Hello. This is Dan Linna. Welcome to Law Technology Now on the Legal Talk Network.
My guest today is Jason Barnwell, Assistant General Counsel at Microsoft. Jason leads Microsoft’s Legal, Business, Operations and Strategy Team. Jason, welcome to the show.
Jason Barnwell: Thank you so much for having me.
Daniel Linna: Great to have you. Well, before we get started we want to thank our sponsor. Support for this podcast and the following message comes from Thomson Reuters’ Westlaw Edge. Thank you Thomson Reuters.
So Jason, you are an Assistant General Counsel at Microsoft, but you also lead Microsoft’s Legal, Business, Operations and Strategy Team. Can you tell us a little bit about your role?
Jason Barnwell: I am happy to. At a very high level our team is charged with trying to figure out how to build the practice of the future for Microsoft and we have specific teams within our team that focus on different elements of that.
So for example, we have a Legal Business Team that’s led by Rebecca Benavides and they really do a lot of the engagement work that you would think would be conventionally applied to how you would do business.
We have a Legal Operations Team that’s led by Tom Morrison and they design, build and operate the machines that provide the support for the practices that we are trying to advance.
And the last pillar is what I focus on, it’s strategy, and it’s trying to look a little bit further out on the horizon and think about what’s coming and think about how we can plan to be ready to address the challenges that are coming, because our business that we support, Microsoft, it keeps moving faster and it has a very, very dynamic cadence to it.
And so we realize that we need to make some investments and think about how we are going to practice in the future, so that we can stay with our clients and make sure that they get the legal counsel that they need.
Daniel Linna: Can you tell us a little bit about what led you to this role?
Jason Barnwell: Yes. I started at Microsoft practicing in the product group, and the way we work at Microsoft is we have attorneys and other legal professionals who are embedded with the engineering teams and so they work with them directly. And so I came in and that was my starting place, which felt very close to home for me, because I was a software engineer.
And that process lets you see very closely how we actually make the products that we deliver to customers, and it’s kind of the core of where we come from, what we do. We are fundamentally a tools and platforms company, if you really go back through our history, and so that’s where I started.
And when you are doing work that supports engineering teams, it tends to be a very high volume practice, because you get to be asked questions by pretty much anybody in the engineering team that you serve. And so you start thinking about ways that you can execute your practice with efficiency. And so that’s where I really started on the journey of thinking about how can I change how I practice so that I can keep up with these folks, because engineers can be very demanding customers. They often are highly curious, they ask great questions and so we needed to start thinking about how we were going to scale our practice.
And so when I joined eight years ago it became clear that if I was going to be able to serve those folks, I was going to need to be creative and think about how I could bring innovation and efficiency to my practice.
And then if we fast forward several years later, I was asked to take on Law Firm Engagement Strategy, which was really thinking about how are we going to work differently with our outside counsel to bring those complements, efficiency and innovation to that dimension of our partnership. And so I had been doing that for about a year-and-a-half and then in February an opportunity arose to add Legal Operations to that portfolio, and so that’s how those pieces came together.
But it’s a very curious thing to me because I don’t have what one might consider a conventional background for this. I was before doing this work a practicing attorney and so I was just one of those practicing attorneys who needed to figure out how to adjust his practice and now I am trying to figure it out at scale.
Daniel Linna: Well, that’s interesting that you would say you were just one of those practicing attorneys. I understand what you mean about the changes and the challenges, but I mean you had a little bit of a different background to having been an MIT educated engineer in this role and a software engineer.
When you talk about the skills I guess kind of needed for your role, what do you think is really required to be successful in the position that you are in?
Jason Barnwell: The things that feel truly necessary to me are a deep curiosity about how things work, and when you think about how you are going to change the practice, whatever that practice is, it starts off with having some facility, some understanding of what the work actually looks like, and the only way to get there is to kind of go and dig and see like what are the motions, what are the fundamental inputs, what are the outputs, what are the key artifacts, things like that.
And so I think it starts off with a deep curiosity and then you need to start adding on I would say like process and systems level thinking. And so when I say process I mean being able to identify what are the repeatable steps, what are the things that people do that are part of producing whatever is the output, whatever the outcome is.
When I say systems level thinking, it is not stopping your inquiry at what you perceive as the boundary of the work. You want to figure out what does it connect to, what does it touch, what supports it. And so if you combine those things together, you start to have a process, a repeatable process that you can apply that starts helping you devise solutions, because the endgame on all this is to figure out what is the job to be done and how can I make that happen more efficiently, with more innovation, with more insight, because everything we do in this work is really designed to facilitate the more effective delivery of legal services, and that is a very human centric process, and anything we can do to facilitate that, to support that, to accelerate it, to elevate it, that’s what we are focused on.
Daniel Linna: Yeah. Well, it’s interesting you talk about looking for repeatable processes, steps and processes, and especially you as an attorney at Microsoft, and I know, I worked in a big law firm and I think frequently we kind of get obsessed with the idea that process is really about commoditization of work and the idea that well, I am not doing commodity work, Jason, you don’t really understand. I handle these special snowflake problems and what you are talking what really doesn’t apply to the work I do. How do you respond when people kind of bring that mindset to you?
Jason Barnwell: I get that all the time. I was recently at an event where there was an attorney from another company and we started talking about what we did respectively and she was a litigator and I started saying oh, well, that’s interesting, and I started asking about her practice and what she did and I started asking these questions which started walking down the path of oh, so what are the common patterns. And she had literally an allergic reaction where she started saying, I don’t want to talk about this and she basically walked away, because it’s clear it started to activate something in her that was like you are trying to reduce what I do to something that is commodified, that is this basic thing, and that’s not it at all.
So, so much of what we do that has the highest aesthetic attached to it is still made up of a series of repeatable processes. If you go to an amazing dinner cooked by a world-class chef, it doesn’t diminish the fact that there is this artistry going on to realize that much of it is excellence born out of being able to deliver superior quality over and over again with a process. And that it is only by going through and really thinking about what are the key things that we do repetitively that we start being able to see the patterns that help us figure out what are the parts of this that really matter, and more importantly, where can I apply my creativity as a human to deliver the most value to this.
And so attorneys, we really regard ourselves as craftspeople, right, like we relish in the details, we love that, and what I would like to see us do is have more time to spend our effort on the details that matter, because there are so many pieces that are often not that interesting that we have to do to get to the good stuff. And so success for me looks at finding ways to get our folks focused on more of that good stuff that I think they really enjoy and they derive deep satisfaction from.
And so I understand that that is the natural response for many people who are in our profession, but I just see it a different way, and I think that finding ways to strip out the parts that can be done in other ways alleviates the work that’s left and lets us focus more of our attention on the parts where we can deliver the most value.
Daniel Linna: Yeah. And that’s a really exciting message to me. I mean I think so much of the discussion around this, sometimes we get focused on just efficiency and we don’t talk about improving quality and getting better outcomes and kind of this freedom then to spend more time on the things that really matter and the work that we do.
Jason Barnwell: Exactly.
Daniel Linna: I think related to all of this, I am really interested, I know you just led a Trusted Advisor Forum for Microsoft’s law firms and other legal services providers. Can you tell us what was the purpose of this forum?
Jason Barnwell: Sure. The purpose was to bring perspectives together to think about how we can do our work a little bit differently. So one of the challenges that we have is that by and large our legal services partners will mostly bring us only what we asked for. And so as much as we would like them to proactively bring us all these fantastic ideas, I am learning that we have to put a little bit more structure around that and we have to, with some specificity, invite them to think about how can you be doing your work with and for us a little bit differently.
And the Trusted Advisor Forum was an attempt to really provoke that and stimulate that and we structured it a little bit differently. What we did was we sent out basically effectively a specification of hey, here is what the event is going to be. We would like you to think about something that you did, looking backwards that you would like to talk about and ideally something that you want to do looking forwards that you would like to talk about and do some prewriting on that, give us a one-page memo that really rolls it up.
And then, this is where it got a little bit wacky, we brought them here and we had them present in front of each other, and we had them present in front of other folks from the industry, and we had other folks in the audience who could see and provide critique and provide thoughts and it was really interesting to see how they responded and it was great.
And the other advantage is I think it brought a little bit of a platform for the folks who were doing this great work in these firms to bring their work forward. And it was great for the other potential clients because then they realized like oh, you could do this for me too, and the answer is absolutely, because what we really want is not to have a bunch of bespoke tools that only work for us. We really want our firms to start thinking about solutions that work for lots of different clients, because we view our engagement with our outside counsel as a partnership and the partnership is not built on getting over on them and beating them. It’s the idea that we can work together and be productive and we can be successful together.
And to the extent that there is an approach, a tool, a process, a system that they can bring to our work but that they can also apply to other clients’ work, to bring that efficiency and that innovation, that is a good thing for us.
And so we are trying to do more of our work in the open and bring our partners forward to try to get them to do a little bit more of their work in the open, so that we can start changing some of the behaviors, because again, unless we ask, we don’t see things change and we don’t see new ideas brought forward. So we are going to try to keep asking and that was what the Trusted Advisor Forum was.
Daniel Linna: What was your response to what you got out of it, were you happy, did you see from the law firms kind of what you were hoping to see or where do things stand kind of would you say?
Jason Barnwell: I think it was a good start and it’s a muscle that we have to build. There are some firms that are well on their journey and they have a lot of the internal capabilities necessary to really start bringing the best of what they have to our work. And there are other firms that they have got a little bit further to go. And we saw that variety represented in the presentations that came up.
And the thing is there is so much room for everybody to improve that even the firms that are starting a little bit further behind, it’s not like the gap is so huge that it’s insurmountable. And I hypothesize that for our partners to thrive and be vibrant in the future they are going to need to develop this muscle, because that is where the industry is heading. And so I hope that they regard these opportunities as true partnership and an invitation to help them evolve and thrive for where the future is going and not something that we are pushing on them, because the goal really is to work together to figure out how we are going to deliver legal services to Microsoft better.
Daniel Linna: Yeah. I think this question about that’s where the industry is heading is a tough one to kind of — to measure and to — I mean I guess lawyers tend to be skeptical and maybe certain skeptical people we should stop trying to convince perhaps, but on the other hand even for people who have a reasonable amount of skepticism, I hear some of them say, well gee, how much of this is just hype, and when you scratch the surface, Dan, law firms aren’t actually doing anything.
I mean what is your sense kind of really of the marketplace as far as what law firms — how seriously are they really taking this call for innovation and new ways of doing things?
Jason Barnwell: A lot of the effort I see looks like marketing. It doesn’t always have much substance behind it. And it is, when you ask for the application of whatever that thing is that they are offering you to your work, when you have to see execution, that’s when it gets real, and that’s when it gets real interesting too.
And let’s be honest about this, if you are operating a cost plus business that lets you lay the risk of going over a little bit on your clients and further that business is basically an annualized cash business that scrapes out all the earnings every year and your organization is a partnership that’s operated by folks who often have a five year departure horizon, the incentives just don’t really line up to support innovation. It just doesn’t.
And so a lot of what we are fighting is gravity, gravity that’s pulling people in other directions and I am often intrigued by people who seem to remark that folks at law firms are not paying attention or somehow they are not smart enough, that’s crazy. These are smart, clever folks and what they are doing is they are responding to the incentives that they live in.
And so within that context it’s completely rational the behavior that they are undertaking, and so that’s why a lot of what we think about is how we can change the incentives, how we can change the physics of the realm to start drawing people in slightly different directions, because it is true that a lot of what we see, it looks nice, but then the question becomes who have you actually done this for, who is using this thing that you are offering, how does it work for them, can I get a client reference.
And I would say that this is something that is worth asking for any potential partner, whether you are talking about a conventional law firm, an alternative service provider, a tools vendor, there is nothing that replaces okay, this is great, who can I talk to that you have done this for.
And the answer maybe, you know what, we don’t have anybody yet, you are going to be our first implementation partner, and that can be fabulous, that can be a fantastic thing, but then you want to make sure that the resources that are being applied on the partner side are adequate so that it’s going to have a good chance at success.
And so these are some of the things that we think through when we are looking at potential partners for all kinds of work that we do, whether it’s kind of conventional legal or if it’s some of the more out there stuff that we are looking at.
Daniel Linna: Well, talking about the incentives and maybe connecting this to the Trusted Advisor Forum because I don’t — my understanding based on some articles I read is not all of your law firms accepted this offer to participate, which is kind of shocking to me, frankly. But I also hear sometimes when I talk to law firm lawyers about not this initiative specifically, but just much more generalized, sure legal departments want to talk about innovation and collaborating and growing the pie, but in the end it just comes down to price and there is actually no payoff in the end.
So how do you get to a point where when you put an offer like this, you have a 100% of firms beating down your door to be there and then show them the concrete payoffs of working with you?
Jason Barnwell: So to be clear, there was no guarantee of work that was associated with what we offered, right? I mean it really was an opportunity to effectively pitch here are the things that I could be doing for you, but that’s often how more work shows up. I mean we think about the typical sales cycle for legal services and it almost always starts off with some kind of relationship and then some demonstrated need and then the market forces connect each other and things move forward.
So I did find it interesting that some of our partners opted out of the experience, because again, these folks are not — they are not stupid, like they are smart people and so I presume that they must have been doing the calculus that the upside of this was not worth whatever they regarded as the downside risk.
And I don’t know what’s in their heads when they are doing the calculus on that, but we backfilled those spots with some other firms, and those firms are now getting work because they showed up and they made relationships and then now we see the conventional sales cycle engagement.
The other thing that’s just interesting to note is, as we think about how we will construct our panels going forward, we have a Strategic Partner Program that is our primary US domestic panel and as we think about who should be on that panel, we have data about engagement and we know who is showing up and who is bringing forward interesting ideas and who is bringing forward talented folks and who is trying to move forward with us. And so when we review who should be a member and who should have an opportunity to move forward with us, we will examine this information because it’s instructive to us.
Daniel Linna: Yeah. Kind of going down the same line of what’s expected of law firms in this ecosystem, how would you define innovation and what is it that you are really expecting from your law firms and the lawyers within those law firms?
Jason Barnwell: Well, there are so many ways to define innovation, but for us a lot of it comes down to some pretty basic things, like can you find a way to deliver your legal services that is just more efficient, and it doesn’t have to be these — it’s so much of what we hear when we think about innovation is, how can I throw more AI at it and things like that.
We think about innovation really as a multidimensional process and a lot of it starts off with some basic process mapping and thinking about okay, what are all the steps that happen to deliver whatever the outcome is and really how does that map to the job to be done. And it’s after that process that we start thinking about okay, well, gosh, there is a bunch of steps here which could probably be accelerated with some type of tooling experience, or that we could take these steps out because there is a process that we can shorten up and tighten or there are just things that we are doing now that we don’t even have to be doing, and so, so much of how we think about innovation here is really trying to serve the job to be done.
And then that breaks into a couple of different, let’s just say tracks, and I think Bill Henderson has a fantastic post out on Legal Evolution, where he talks about what are effectively the type 0 and the type 1 innovations which are more or less innovations that are kind of on the front end of something that is new and then the other side of that is what are probably more conventionally regarded as sustaining innovations. So what’s the kind of radical things that didn’t exist before, where you are doing something that’s just greenfield and how are you taking processes and refining them and making them much more efficient.
And so there is I think a process to innovation that it goes back to I think a lot of what I was talking about before, which is really decomposing what are the processes that serve the job to be done and how can you do that more effectively both making the humans more efficient by giving them, for example, a playbook, a decision framework, something that allows them to accelerate how they do their work and then ultimately when you start having adequate scale, how can you start creating tooling experiences that accelerate that further, and then when you start bringing in tooling experiences, you are often starting to capture data at scale, and when you start having data at scale, then things start getting really interesting, because now you can start moving into some of the more modern technologies that can really, really accelerate and bring all kinds of insights to how you do your work.
So for me, when we talk about innovation, it starts off with some of the more basic building blocks, but when you take those seriously and you are disciplined about them, you end up getting this compounding effect that takes you up the ladder to some of the more august things that people I think conventionally associate with innovation.
Daniel Linna: So a related question on that is that, I think at some firms there are lawyers and then there are allied professionals to help with different things like project management and technologies, things like that, which is great and I think — I mean clearly allied professionals are playing a large role in innovation, but to what extent does the lawyer, him or herself, the subject matter expert need to be engaged in this process for a law firm to actually be able to innovate?
Jason Barnwell: So the short answer is deeply engaged, because the lawyer should be the architect. So I am often intrigued — I had a conversation last week where I was basically talking to one of my colleagues and we got into, I wouldn’t say it was an argument, we had a discussion about, how do you know if somebody is a good lawyer, right, like what are the indicia?
And for me, there are some kind of basic things that I like to see and one is, they can explain why, why are we doing this, what are the fundamental rules that govern this. Like if you are talking to me about risks, where do they come from, what shape do they take, what magnitude do they have, just some of that basic kind of analytical framework tooling, that is what I look for when I think man, that person is a really good lawyer and if they can communicate that crisply I am like wow, their lawyer knife is really sharp, that’s great.
If that person can then describe that, document it, that is the next step, because ultimately what we want to be able to do is partner these attorneys who really are the architects of whatever the process is that is their core practice, and we want to partner them with these allied professionals so that we have people who can then operationalize that excellence at scale. But that only happens if the attorneys are willing to partner and willing to meet people who can make them superheroes by giving them these amazing processes and tools where they are.
And so I think this is a part of the discipline of law that we don’t do and we don’t really teach and we don’t really learn that needs to change. And so we are doing a small experiment internally to see if we can start moving people along that path, and it’s going to take us a while, but we will see if we get there.
Daniel Linna: That sounds really interesting, and I want to follow up on that Jason, but first we are going to take a quick break to hear a message from our sponsor.
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Daniel Linna: And we are back. Thank you for joining us. This is Dan Linna and I am here with Jason Barnwell, Assistant General Counsel at Microsoft.
And Jason, just before the break we were talking about the challenge of measuring the quality of lawyers. What kind of things are you doing at Microsoft to really get a little bit more rigorous and scientific on that topic?
Jason Barnwell: So we are in the process of changing how we create our outside counsel matter engagements, and as part of this we are starting to think more deeply about how we measure quality. And our basic approach is to start collecting more feedback from our buyers, from the folks who actually originate the matters and do the work with our outside counsel.
And the way that we are operationalizing that is we have a PowerApp. And so a PowerApp is a really clever cross-platform mobile application development technology that we make that lets you take things like SharePoint lists and create these really clean, snappy, sleek interfaces, and so we now have this and we can send it to our in-house folks and we can say, you seem to have done some work with outside counsel, tell us about how that went.
And the experience that we have looks a lot like a ride share app, inasmuch as it’s got a few different categories, like Value and Microsoft Knowledge, Legal Knowledge, Responsiveness, things like that, and we also have Free Text, so that people can tell us about how the experience went. And so now we are starting to collect this at scale and this is starting to give us some insights as to how people feel about the work that they are buying.
The other thing that we have done is we have started to take that information and feed it back into the matter selection process, so that when one of our people decides that they want to go partner with outside counsel on a matter, they go and they have an experience that’s not radically dissimilar from Amazon.
So, when you go to Amazon and you pick a product, it will often show you other options, and that is what we are giving folks. So for a given work area we will offer a series of who we think are good options for them to be partnering with and there are different rows for each of the prospective partners, we will show information, like their feedback scores, diversity scores, their panel status, how they are doing on our security audits, all kinds of information that we hope can help them make better choices.
Because we operate at adequate scale that if we are smart and clever about collecting more of this information, we think we can create more value, not because we are driving against something specific to price, but we can find the partners that can do the work more efficiently and more effectively. And so that’s what we are trying to do.
Daniel Linna: So when it comes to more effectively, are you trying to gather data to kind of measure outcomes? I mean I guess we think of litigation matters right away, but no reason why you couldn’t do that in a whole host of matter types, are you trying to measure that in some way?
Jason Barnwell: We are not doing that yet. We are basically using some of, I would say the standard proxies, but as we start doing a better job of mapping out how we do our work here, so we are probably going to undertake a pretty serious knowledge management process starting probably in the New Year. As part of that we will really start going deep and will be targeted at first and try to really think about what is the shape of work, what is the shape of work in a given practice, and specifically, what are the inputs, what are the transforms, the things that people do to them, what are the outputs, and then ideally what is the impact.
So one way to think about that is was it a successful litigation matter, did the exposure come in under what we expect, did we get something that — was the disposition what we thought we should get. But where I would like to take this ultimately is really trying to map more of the work that we do both in-house and with our outside counsel partners and over time finding ways to map that to I would say, let’s just call it business value, and at that point we can start doing some really interesting things. But I will be honest, that’s going to take us a long time, so that’s a very aspirational view.
But in the near term, we probably can do some things that would help people understand value. So for example, in the litigation context, I think you gave something that’s very tractable for a lot of people. But in the commercial context, one thing I would like to be able to show eventually is how long did it take to get the deal closed, like was the velocity of this deal what we would expect, do people feel good about that, the partner and accelerator, did they help clear issues quickly, did they move us forward.
But to do that I am going to have to work very closely with our practice groups, because so much of what dictates value and quality is very domain-specific and so I am not convinced that I will be able to come up with a really exquisite one size fits most, that gets to that business value level, but at least in the near term we can probably abstract to a place where people could at least say, was it good, was it bad and here’s why. And then over time as we get more sophisticated we will start breaking that into something that has more detail to it.
Daniel Linna: Yeah. And when we talk about innovation, so much of it is just getting started and this is probably an example of it, just getting started, you are going to learn so much on your journey here.
Jason Barnwell: We hope so.
Daniel Linna: What about, have you thought about or started introducing 360 reviews in any sort of way, having your law firms kind of assess you as a client or how matters are handled, anything like that?
Jason Barnwell: So some of the practice groups will do deep dives, especially on a specific matter, the larger matters, but I would not say that we currently do something that looks like what I would regard as a conventional 360, which often involves a very detailed survey and then very detailed interviews, in part because that requires a whole lot of work.
So that might be something we should think about is how we would do that, but with the current spread of firms that we have, it would be hard to do that at any scale. So at most that would start off as an experiment to think about okay, what can we do to partner more effectively?
I will be going and visiting several of our partner firms most likely in the New Year, where I will be taking the feedback that we have gathered and I will be going on-site and saying hey, here are some things we have learned, I am curious to get your thoughts on this, are there ways that you think that this could help you do your work more effectively, are there things that we are doing on our side that are getting in the way of you delivering more value.
Because what we learn is the data are interesting and instructive, but in many instances it mostly gives us better questions to ask. It is often the case that data do not necessarily answer the questions, they just give you better targeting for conversations that get you to root causes that gets you more value in the long run.
Daniel Linna: Going back to your points earlier about incentives too in working with law firms, I know Microsoft announced that it wants to move 90% of its legal work to alternative fee agreements within the next two years. Can you tell us just a little bit about what that looks like structurally, but maybe more importantly why Microsoft is going that direction?
Jason Barnwell: Sure. So we have a lot of varieties of alternative and value-based fee arrangements that we are using. So they range from portfolio level agreements, to fixed price unit work, to points based systems, to success fees, so there are many varieties that give us real creativity on how we address what makes sense for a given type of work.
But you did go after the most important thing, which is why. And there is a thought experiment that guides me when I think about this and it comes down to something that sounds like, if I ask outside counsel the same question twice and I get the same answer twice and they get to bill me twice, are we really aligned, are we really in a place where they have what they need to be innovative and efficient that’s drawing them towards that. And I don’t think so. And so much of what we are doing is really focused on trying to make sure that we have aligned incentives, so that we are working together.
And one of the things that’s interesting for me is we are seeing that when we use these alternative fee structures, it actually supports better partnership, because you don’t have the shackle of the billable hour getting in the way and you don’t have people looking at the clock. It gives them more latitude to think about I should spend more time learning this or I should spend more time with my client.
But the other thing is it gives them a situation where they can win, because if they develop a more efficient or more innovative way to do something, and they are already going to be guaranteed a certain amount of money, then they can beat the house and that is a good thing. We actually regard that as success, because we want our partners to benefit from that kind of investment and we want them to benefit from being innovative and being efficient. So we hope that we start to see that this is a good thing not just for us, but also our partners regard that as a good thing for them.
One thing that was, I wouldn’t say was a surprise, but I didn’t really think through enough when we started on this journey was, we are also asking our internal folks to do things in a very different way, and that’s hard. Anytime you change how people do something, there is a cost. And so it has been very interesting because there are many instances where I talk to our outside counsel partners and I say hey, how is that thing going and they are like well, it’s great, but it was really interesting because I pitched your folks on an alternative fee arrangement and they were like, oh, could we just do it under billable. So that’s obviously something that means that we on our side need to do a little bit more training.
But I will note that this is where I somehow managed to — we picked up an ace. So Rebecca Benavides, who I mentioned earlier, who is our Director of Legal Business, she is expert at this. And one of the things that she has done is she has made the process of using AFAs, of using tools like comparative bidding really painless and easy on our folks.
And there is something else that happens that really introduces what we see is a major efficiency dynamic when we start going in the alternative fee arrangements inasmuch as — and I will reflect upon my failings when I was a practicing attorney, it was often the case that when I had work I would basically go to my partner and I would say something like hey, you know what I want, here is the budget, do the right stuff. And I didn’t give them adequate precision or specificity on what success looked like and what good looked like.
And so trying to be faithful partners, they would often throw time and effort at work that had little value for me and if I had been more thoughtful about describing what I wanted and the specific things that I cared about and what indicia of success and quality really looked like, I think I would have gotten better work quality. I would have gotten something that was way more efficient.
And so there are other benefits that come from the process that go beyond just the incentive structure. If we put more discipline and rigor around how we actually describe the work to be done, we get better work.
Daniel Linna: Yeah. Well, that’s an interesting example as well too, because I think — especially if the incentives are in line, even if the in-house lawyer maybe doesn’t describe kind of what success looks like very well, you have made it very clear then though with this new incentive structure that outside counsel should be asking those questions and making sure that they really understand what success looks like.
Jason Barnwell: That’s correct.
Daniel Linna: Yeah, so a lot of win-win opportunities there. One of the other things that you and I have spoken about before is diversity and the benefits of diversity, but then also my observation across the legal industry generally is that, this has been recognized as important for a long time, but far too little progress made. How are you trying to address that?
Jason Barnwell: Well, we have many things that we are trying to do to help advance diversity, but again, the most important thing is to start with why, why do we care about diversity, and it really comes down to business for us.
So if you look at our recent history, some of our greatest misses are a direct result of not having a broad diversity of perspectives brought to how we decide the products that we are going to make and how we then construct those products.
And if we are going to go after our ambitious goal of empowering every person and organization on the planet to achieve more, we need the breadth of those perspectives brought to how we do our work and brought to the people who do our work. And that means both internally and that also means our partners, and so the why matters.
And there is another dimension that informs a lot of what we do and I recently gave a presentation where I got into how we think about diversity in our outside counsel partnerships, and a formative piece of research came from McKinsey, where they show that when you have more diverse teams, they deliver more innovation and in the long run they deliver you more value. And so it is often the case that I think when people start having questions about diversity, it goes to a lot of kind of pro-social drivers, but for us it’s good business.
And so then you get to the question of how, how are we going to do this. Well, one thing we are doing is we are changing the incentives. So for our panel firms, our US domestic panel firms we have what we call as the Law Firm Diversity Program, which pays cash bonuses. So if you are successful in bringing more diverse talent to your firm’s leadership, to the leadership of our matters, and to the work that you do for us, we will pay you more money, and that is money that comes to you that did not have any additional work attached. So it is the highest margin revenue that you will get from us. So that’s one way that we are trying to do that.
But one thing that we are going to do over time is try to think about how we can do this at scale and that’s going to involve bringing more intelligence to our internal buyers. So the folks who have budget, we want them to have tools that help them see which firms are bringing diverse teams to do your work.
And as we start getting more and more precise and capable with our tooling, we can start bringing visibility to senior leadership, so that they can see what are the buying patterns, what are the habits, what’s going on here so that we can ensure that the policies that we think bring more value to us as an enterprise are actually happening in the small decisions, because again, our folks here are really smart people and what they are trying to do is make the best decisions they can. And it’s hard for them if we cannot give them tools and processes that support that decision with data and really give them insights into what they could do a little bit differently that aligns to the policies that our senior leaders care about because it’s such a core part of our business strategy.
So we have a lot of work to do, but again, we are trying to do some things and I think we are going to have a foundation and a core platform that will hopefully help us shape behavior at scale so that we get the outcomes that we are looking for. But it’s going to take a long time.
Daniel Linna: Yeah. Well, one of the areas where I hear a lot of discussion too about diverse teams right now is the importance when we start talking about artificial intelligence, machine learning, statistical learning approaches, being sure that we have diversity in our teams, putting those tools together. So I wanted to ask kind of in connection on the technology piece, we have talked a lot about the people and process part and understanding the tasks that we do and improving efficiency, quality and outcomes.
You also though did mention kind of the jobs to be done, channeling Clayton Christensen and there was recently a Richard Susskind article that kind of criticized the task-oriented view as saying, we are underestimating the role technology will play in the future, that if we think about outcomes, technology will produce many of the outcomes people are looking for.
I mean what’s your view kind of on how we think about the role technology will play in the future? Is it too overhyped or do we need to be more thoughtful about thinking the way the world is going to change?
Jason Barnwell: We always need to be thoughtful, because there is a very real dislocation that happens whenever you introduce any type of new technology, like history is replete with that. At some point I am sure there was a large group of people making buggy whips and that was a valuable and necessary enterprise and then probably fairly quickly that was diminished in importance. And so the idea that we would make things that leave people behind if we are not thoughtful is something we can’t lose sight of and so I don’t throw that away.
But yesterday I was listening to a podcast, I was listening to the a16z podcast, and I would have to dig it up, but I think it was Frank Chen and some other folks who were talking about really the future of kind of the modern factory and how will robots be integrated into that. And what they started describing really was that the most effective value is created by the partnership of machines and devices, and that there is still so, so, so much ambiguity and vagueness that happens in all types of work that you can’t just unleash robots on this stuff, because they don’t adapt quickly enough.
And even if you start thinking about AI, which moves from kind of a declarative rules-based approach to more of a stochastic approach that can potentially adapt as you have better signal, it still doesn’t understand things that are outside of its context. That’s stuff that humans are good at.
And so a lot of what they ended up talking about on this podcast was really, I think they called them cobots, which is humans working with machines and machines doing the things that are the stuff that really wears us out and that our brains and our bodies are not designed to be effective at.
So to your original question, there is absolutely a risk that we will not be thoughtful about how we will build experiences in the future. We will not bring diversity of perspectives and I mean that across so many dimensions; socioeconomic, ethnographic, what have you, and that we will not design things that elevate humans in the way that we could and so that’s why it’s important to think about that.
And so I would say that Microsoft as a company is trying to be very forward-looking and so we have a series of principles that really dictate how we are going to make AI products and it tries to put humans at the forefront, so that humans are being served. So that’s what we are going to try to do, but I would be lying if I said like I knew where it was going, like this is hard, interesting work and we are going to be figuring it out over the next decade.
Daniel Linna: Well, on some of that forward-thinking stuff about putting humans at the center, it seems to me like a lot of these problems are being worked on and I don’t see any lawyers involved frequently. So what do you think lawyers ought to be doing so that they can be at the table and contributing on solving some of these problems that we are thinking about in the future and including obvious things like the impact some of these technologies will have on rule of law? I mean how do we get lawyers engaged with folks who are thinking about these problems?
Jason Barnwell: Well, I think one thing that lawyers do is we get in our own way wherein we say well, I don’t know, that seems like some nerd stuff I am not really interested in and so I am just going to stay away, or oh, you know what, that seems like something that’s really going to be an issue that’s arbitrarily five years from now, and I am not even sure if I am going to still be doing this, so why don’t I just kick that can down the road.
And my concern is that we are becoming less relevant as a profession and so I would implore everybody to go read Bill Henderson’s report delivered to the California State Bar, because one of the things that it highlights is that as the basket of goods bought by consumers, law is increasingly diminished and that’s a real problem. So somebody might argue if you work at a corporation, well, okay, but why do I care about that because I buy premium legal services, what’s the big deal?
Well, the law is an institution. It is infrastructure that we all use and if society doesn’t think that it has value and if society starts to think that it has diminished relevance, then that impacts all of us and it doesn’t matter whether we are talking about small claims issues or massive torts litigation, when people start to lose faith and confidence in institutions that form kind of bedrock of our society, then that’s a problem for all of us.
And so that’s where I would absolutely challenge the folks in our profession to really engage and to get curious and to start asking like how do these things work and start figuring it out, and just as importantly, start using the tools.
The thing that I am always amazed by is the kind of revulsion that many of our folks in the legal bar have when we say hey, I have something that might make you more effective and they are like but would I have to do something differently? Well, yeah, a little. Well, I have already learned how to use this quill and feather so I don’t think I need to go figure out that new type thing.
So if we want to be relevant, we need to engage with what’s coming and not just discard it as a bunch of distraction that honestly I can just go learn later, because the other thing is the people who pick these tools up earlier, they are going to serve clients, be more effective, create more value, be successful, and a lot of what I think I see is behavior that just comes from being, as you noted, skeptical, probably a bit more conservative and in many ways those traits serve us.
The looking backwards, seeing things that have broken before and saying like hmm, maybe we shouldn’t do that, that’s a very valuable part of how we practice. But I worry that that is getting in the way of our forward-looking relevance.
And so I think my main takeaways would be imploring people to be curious and actually go play with the toys that are coming out there, because they are interesting, it’s going to be necessary to understand them to do your practice well, but also they can make you better and more effective.
Daniel Linna: Well, what toys might you say we ought to be playing with? I mean in some of my law school classes we have built expert systems in Neota Logic and used ThinkSmart and used QnA Markup, done a little bit of Python coding and Jupyter Notebook, done some data visualization in Excel, in Tableau, in Power BI. I mean do you have any specific examples you might throw out there?
Jason Barnwell: So you have just named several fantastic examples. So one thing that I am playing with a lot right now, and again, so I work for Microsoft, so vendor warnings apply, but I am using a tool we make called Flow, which is part of the Office 365 Productivity Suite. And if people have ever played with if this, then that or Zapier or other things like that, it basically lets you create these really simple automation.
So for example, if you always want an email that comes in and is sent to a certain email address, so for example, if I am subscribed to some leadership alias and I want Tom and Rebecca to see everything that comes through, I might normally have to manually say oh, I saw the email came in and I would forward it along.
With tools like Flow, it lets you create automatic rules that let you automatically forward that email along. And somebody might say, well, that’s good, but you could do that in Outlook. Absolutely, you could do that in Outlook. Flow lets you do so much more. You could have it automatically routed to teams or you can have it sent to your OneNote. There are so many things that you can do with that. And by the way, you can do these things without writing any code. So you are basically dragging these blocks around and you are kind of wiring things in, but you don’t have to write any code.
And we used Flow to automate the sign up process for our Trusted Advisor Forum. So I don’t think people realized it, but what we had them do is we sent them an email and said each presenting team gets six slots. We need the information about the people that you are bringing. Conventionally, how would we have done that, email, right? So it turns into these ruthless transactions where we are trying to get all this information.
We hosted a forum. The forum triggered a Flow. The Flow created basically an approval workflow that let us see who was this person submitting. And it’s like yes, if this person seems appropriate, then the person who was on the event team could basically just click a button on their email that says yes, this is good. And then that Flow would automatically forward the calendar invitation, it would add them to the list and it would send a note to the sponsor saying like yes, this person is good to go.
One of the advantages of this is we now have this really clean dataset of all the people who are attending. So it’s easier to get their badges printed and we start to understand who is interested in engaging with us, because we took all that information, we have it in the SharePoint list, and so when we go to do it next year and we are thinking about who should we invite, like oh, these people seemed interested, maybe we should invite them again.
So that’s just one example, but I think you gave so many fantastic examples of tools that people should just go play with to see what are the problems that they have that maybe they could make better with any of the tools that you just described.
Daniel Linna: Great. Great examples. So we are getting close to the end of our time here. I wanted to ask though a question about, you have your own podcast and I have listened to several of the episodes, and on one of them you talk about law students and junior lawyers developing a business plan for their careers. And I think suggestions like that are so powerful because they really aim at empowering other people to kind of be proactive about this. But I don’t know, what would you say to the law students and junior lawyers who are listening to this? I mean how should they go about developing a business plan for their careers?
Jason Barnwell: Well, first, you should just have a hypothesis for what you think it is that you want to do and you should be testing that. So you should think okay, well, I want to be an adult, what is the thing that I think I want to do, realizing that you are probably going to get it wrong, but that’s okay, because you want something that you can test against.
And so then the obvious question is well, how do I test this? Well, one expensive way to test is to actually go get jobs. You commit to something and you go do it and you kind of walk down the road and you see what it’s like. A less expensive way to test that is to go talk to people, to read things that people write to get a sense of what it is that they are doing.
But ultimately, when I think about what I see, I see what I regard is a lot of not enough thinking about how people are going to differentiate, because what I think I see and what I saw when I was in law school was a lot of people going through conventional paths, which is fine, but it doesn’t often reflect the things that people are uniquely good at.
So my approach in law school was a little bit different and I am not saying this was — this works for everyone, but it became clear to me that my ability to differentiate on doing — being on law review, doing things like that, that wasn’t going to work very well for me. So I did things a little bit differently.
I decided to go do research with a couple of professors and I wrote them custom software and that ended up creating customized datasets that I hope were valuable for them, but that was a way for me to go get relationship capital with those folks. That gave me what I thought were very interesting stories to tell when I went on the interview loops. It was something that felt more authentic to me, but that was part of my plan, my business plan of how I am going to differentiate.
Now, I hope people don’t hear this as don’t focus on getting good grades, don’t focus on getting markers of honorifics that demonstrate your excellence, but I guess I would say is, at every point in your career you want to have some theory about the investments that you are making that lead to where you want to be going. You want to have those hypotheses that you are testing, and you want to make sure that you are doing something that is hopefully leading to the things that feel authentic for you.
Because the other challenge that we have is when we get trapped into these paths that don’t feel like things where we are really riding towards our highest, best purpose, your resilience gets very low and your stamina gets sapped.
And so I walk downhill to work everyday because I get excited to come in here and do the things that I am trying to do. And I promise you, they are not easy. So it’s not like it’s downhill because oh, like it’s just going to be a cakewalk today, but the work that I am doing feels very fulfilling.
And I will tell you that the things that I am doing right now are the fulfillment of things that I set out to do many years ago. And the process of writing down what I wanted to be doing and thinking about what are the steps between here and there, and just as importantly, what are the relationships and experiences that I need have been critical in actually executing on that.
Daniel Linna: So just one last thought on that. So many of the lawyers you are working with at outside law firms, many of them went to top 20 law schools and we have seen some of those schools changing what they are teaching. What would be your suggestion to deans at some of the top law schools? I mean what kind of things can they be doing to better prepare their students for the future?
Jason Barnwell: I find it interesting because the more prestige is attached to the law school, typically the more conventional the thinking around a lot of the curriculum is inasmuch as well, you know, my job is really to produce judges and academics and scholars and so I am not going to be overly burdened with a lot of let’s just say practical skills training, which I think is quite misguided, because if we start thinking about who the amazing practitioners, academics, judges are in the future, they are probably going to be people who have facility and skills with tools that make them super-powered.
So especially if you are an academic, if you are doing anything that’s based on empirical research, wouldn’t you want the capability to manufacture data that can really substantiate your research.
And so I had a very concrete example of that wherein I am going to try to be gentle when I say this, but I had these professors who wanted work from me and they didn’t have many other ways to go get it. I was a very scarce resource and I will admit like there aren’t that many folks who start off writing software and who go to law school, and I am not saying that lawyers should learn how to write code, but many of the things that I did for them that took custom code, that was many years ago when I was in law school, a very clever person who just has curiosity could now build using tools like Excel, maybe throw a little bit of Python at it, but I am not even sure you have to.
These tools are becoming so much more approachable that why wouldn’t you give your students these superpowers so that they can deliver new solutions, both in law school, but just as importantly when they go into practice, wherever they are, that they can take those forward with them, because if you don’t give them these tools, the real challenge is they may not even know what they can do with them. And that’s really where this ends up, because eventually — so I really probably shouldn’t be writing my own code, if we are honest, like I should be finding other people to write my own code, but I love it, I love it so much.
The more important thing is I understand what I can ask for and that’s the critical part, realizing that there is not like a magic wand that people just kind of sprinkle over things and like stuff. It’s like, oh, no, no, there is kind of a process and these are the inputs, these are how things work, and when people have the ability to ask for that product that they need that can make them excellent, then that’s really what you want to give them and that’s the level of facility I would think people should try to achieve.
Daniel Linna: Well, that’s a really exciting way to finish things off Jason. Thanks so much for being here. Can you let our listeners know how they can find you? I know you are on Twitter, that you are a must follow on Twitter. How can the rest get in touch with you?
Jason Barnwell: Sure, on Twitter, my handle is @smuckwell and I put out podcasts at www.businessoflaw.net.
Daniel Linna: Great. Well, thank you so much Jason. This has been another edition of Law Technology Now on the Legal Talk Network.
If you like what you heard today, please rate us in Apple Podcasts and join us next time for another edition of Law Technology Now. I am Dan Linna signing off.
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