Practicing law means staying on top of the latest trends and developments to keep yourself educated and provide the best possible service to your clients. Mike Whelan Jr., the CEO of Lawyer Forward, joins Todd Smith and Jody Sanders to talk about how lawyers can thrive in a changing legal environment and institute changes in their practices that benefit the lawyers, their clients, and the legal industry as a whole. Mike offers tips to rethink the structures and roles of modern legal practices for both solo and big firm attorneys. Mike’s background in both logistics and legal practice provides him with unique insights for attorneys to maximize their strengths and build upon potential weaknesses to create new legal practice structures and relationships. As innovation becomes a necessary survival skill in the ever-changing legal market, lawyers who fail to adapt risk falling behind. This episode can help you identify ways to break through your constraints as an entrepreneur and how to support other parts of your law practice to maximize the benefits for you and your clients.
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Rethinking Your Role in the Legal Industry | Mike Whelan
We have our guest, Mike Whelan. Mike is an author, podcaster, Facebook Live hoster, and a lot of things technologically related. And an interesting guy. Mike, welcome to the show.
Thanks for having me guys. I’m bored on many social platforms because it’s COVID and lonely.
It is. So people have a chance to get to know you, I’ll throw it out out of the gate, you are a Texas licensed attorney, and you practiced for some time. You’ve practiced in a few settings, but was most of your time down in Rockport? Where all did you practice?
I started in Austin. I met Todd during law school, and I went to the University of Texas at Austin and I practiced there for a little while. I partnered with a friend there for a while. I moved down to Rockport, which is a rural context. That last spot drove a lot of the truths that came out in the book Lawyer Forward, that I wrote about that experience of trying to get out of the churn of that daily grind of you’re only worth your next hour or your next case. In solo and small practice, I experienced the difference between building assets, something to last, something that didn’t need me versus what’s happening for most solos where you’re in this constant grind of cashflow obsession and that was the core of the book. My practice was in mostly family law in different parts of Texas.
You’re dedicating yourself full-time now to the other pursuits that we’ve touched on, is that right?
That is right, which my wife thinks is hilariously ill-informed. Despite what people say, it’s easy to make money as an attorney. You get to tell people, “This is what I charge,” and get over it. When you’re doing something a little more esoteric, like writing and commentating, it’s a little harder to explain to people why they should do what you say. We are living on this. We live in Kansas City. I’ve officially gone inactive as an attorney. I got a new card from the State Bar. It was gold and it said inactive on the bottom and my kids thought it was hilarious that they sent me a new card to say, “You’re not even a lawyering dummy, so here’s a card.”
To some people, you’ve entered Nirvana, then a lot of people think after they’ve practiced for a while, they’re like, “Why am I doing this? Maybe I can figure out something else to do and use my law license,” which you’ve got the benefit of your experience as a lawyer that I think colors your work in many ways.
Another friend that I met during law school, Jordan. His advice to me was don’t do a practice area that involves someone crying in your office. I did family law and that is a context I’m glad to be out of now. That is God’s work. Good on you people who are dealing with that stuff, but I couldn’t do it anymore.
We’re going to talk about the book because it’s fascinating and I think there are some lessons for both trial lawyers and appellate lawyers in there. I do want to mention before we get into that too deeply that you have hosted a conference here in Austin and did that for several years. You’ve then also started a podcast and both of those bear the name also Lawyer Forward.
We did the Lawyer Forward Conference for a few years live in Austin then did it virtually. I think in the future, it might well be virtual for a while. It’s difficult to do a live conference these days, but in general, getting lawyers to come and step out of their world for three days is difficult. The purpose of Lawyer Forward, whether it’s the book, the conference, or the podcast, is to change the culture and get people to think differently about the way they do things. I worry with a few days of the conference that people will show up, they’ll listen for a while, tell themselves they check the innovation bubble, and then go back home and do the exact same thing. The advantage of things like virtual conferences and podcasts is you can stay in people’s minds for a longer amount of time. I think we’re probably going to stick that way.
Now everybody’s familiar with Zoom, webinar platforms, and things in a way that months ago nobody was.
I want to dive into your experience that led you to write the book because I’ve read it, I’ve marked it up like crazy and there’s a lot of aha! moments in it for me. Maybe I’ll share one of them, 1 or 2 of those, during the show. I’ll start with what I thought was an interesting story. If you haven’t read the book or listened to Mike’s podcast, I’ll say he’s a gifted storyteller. That’s one of the ways that he teaches. The story that you lead with about how the legal factory system got started was interesting. The way I read it was that this was the origin of the law firm of what we think of now as the big law firm model, the Cravath model with associates. Touch on that, but also tell us what the driver was for you writing this book that makes us think about how to do things differently.
The context in the background of the book is that I didn’t go to law school until I was 30. I had worked in logistics already for almost a decade before that. I got my first job in trucking when I was young because I was dating a girl who looked like Drew Barrymore. Her dad owned a trucking company and I got the job. I worked in that industry for a few years. It wasn’t the right spot for me. I went back to law school, as you do when you don’t know what you want to do. I came out and Todd, you saw this when I was in law school.
I had some understanding of what it’s like to run a business and to be part of a business and the students who were at Texas did not have that background. I created, I think maybe in my second year of law school, a future solo small firm club with the idea that, “It’s 2008, it was a disaster and you guys are all going to have to be at some point in your life solo.” Fifty percent of lawyers are solo, which means more than that are solo over the course of their life. You need to learn some of these skills, this needs to be part of the legal education and it wasn’t at UT at all.
I created this group, I started teaching these things and through that, and through the conference, as an aside, nobody showed up at these things during law school because they all assumed that they were going to get big firm jobs, but they all called me afterward. All of that stuff kept piling up and I found myself talking about these things so much that it was fun. I went back and tried to figure out why do solo and small practices work the way they do. That led me to why big firms operate the way they do and back to the story of how Paul Cravath came up with what we now know as the Cravath System.
In this book called The Last Days of Night, it tells this interesting story of the fight between George Westinghouse and Thomas Edison over the incandescent light bulb. Edison was a jerk. He has a terrible character in many ways. One of the jerky things that he did was he put these employees in a warehouse and they all worked on the same problem, nameless, faceless, and cogs. They would raise their hand and say, “I got it.” Edison would then go slap his brand on it and sell it. It was this idea factory model. It wasn’t like a chain model like the Ford model, that’s the way Westinghouse’s office worked. Edison was not an inventor. He had an invention factory. He had a bunch of smart people in a room churning overwork, raising their hand, and then losing the asset. Instead of Cravath walking in and saying, “This is a nightmare and looks awful for all employees.” He said, “I’m going to do the same thing.”
To Cravath’s credit, he added a lot of human touches to it. He tried to make it based on the education of the associates, but it was designed for the churn. It was designed for this mulling over the same thing over time and this was amplified when law switched to hourly billing. That wasn’t true before that time period. We were not doing hourly billing before that, but between Cravath adding the system, what Langdell was doing at Harvard with legal education, it created this system where we were doing analytic thinking, breaking things down, no big picture thinking and churning over hours.
I’m not the first to say that this is disastrous at all. It’s bad for lawyers. We have a lot of data about how bad this is for lawyers and clients aren’t happy. The economics of it don’t work well. They work in the short-term, but not in the long-term. I’m not the person to raise these flags. My question was in the book, how do we fix it? How do we use what I learned from my supply chain background before law school to create some new way to work? What the book is is a journey of me trying to figure out how my two worlds make me an asset rather than a piece that doesn’t fit.
You’ve mentioned the concept of the churn a few times and I think that’s the central theme of the book. We as lawyers, most of us, the ones that at least bill by the hour we’re almost stuck in this model of, we know how to work, we know how to get paid, and we do what’s in front of us but we’re only as good as the next hour or the next eight hours that we can bill. One thing that you advance in this book is how to change the system and this system is slow to change, but how to change the system so that you’re getting away from only being as good as your next hour.
I want to talk about this some more in a bit. You mentioned the idea of building assets as a way to be profitable, to make money as a lawyer with a couple of different models. Those are fascinating to me. The one thing that you talked about too, a lot, is this concept of silos. It seems like that’s where the associates in the Cravath model or any firm and lawyer do a certain degree. It’s true that we, as a profession, do tend to get siloed and only think about and deal with what’s basically within arm’s reach and what our immediate problems are. I’ve observed this certainly in myself and many other lawyers and it’s notoriously hard for people to get our attention or to encourage us effectively to change because we’re used to being in our bubble or silo.
What’s interesting about that research is that silos are not bad. In fact, they’re good if they are properly structured and properly connected, then silos are great. There’s a book called Tribal Leadership, for example, that talks about how this works in offices. How instead of breaking down those clusters of 20 to 150 people who naturally siloed, it’s part of this human condition, instead of trying to break those up, which rarely works, that I share the story of Sony and how that was a total disaster versus Apple who broke it up by Steve Jobs of being an autocratic dictator.
There’s a lot of bad things with trying to break down these silos. But the research shows, there’s a book called Friend of a Friend that I reference a lot, is that being in a silo that’s properly structured is productive. I share the example of Venetian glassblowers and how being moved to a silo is great for them. The issue is that we’re not connecting those silos well. When I think about big firms and Jody, you know more about this context than I do, one of the big problems with the larger firms is the lack of coordination between the silos. It’s that lack of connection between you; see, this floor does this practice area, and this floor does this practice area, and this floor is the leadership and they don’t connect and this is true. As you add offices, you start to separate more and more, and there’s no connection. What network science shows is that the silos are great, but leadership needs to figure out how to connect these people. It’s different from a solo, small firm context, but in the big firm context, you’re seeing it as well.
I think that’s right and part of the issue overall in big firms is the people that lead big firms are lawyers that grew up in big firms for the most part. To your point that you were talking about earlier, these are people who went to law school, 20, 30, 40, 50 years ago, and didn’t get the business side training of it. Maybe you’ve had some that you’ve picked up along the way, but basically, you’ve learned your entire career in the big-firm model. Now you’re managing the big firm model, so when someone comes in and says, “Let’s break this up, change this, break up the chains and make some more connections,” there’s necessarily pushback on that because it’s uncomfortable. It’s scary and these people have been successful in this system.
You’re rich as well. As Richard Susskind says all the time, “It’s hard to tell a room full of millionaires that they’re doing something wrong,” and that’s true. The issue goes beyond law, this question of how to connect people appropriately. There’s a good book called Counterproductive by Melissa Gregg. The line there is brilliant, where she says, “Instead of creating environments where you’re thinking of the hour and making people maximized in their work spot, instead what you’re doing is cultivating atmospheres where people can succeed.”
I love that idea of cultivating atmospheres as the world becomes more complex, including work contexts. We can’t control every step. If 2020 has taught us anything, it’s that we have no control over anything. What we’re trying to do is cultivate these atmospheres where the outcomes we want are more likely. For large firms cultivating that atmosphere means figuring out how to get people incentivized to do amazing work in their silo, in their bubble, cooperating with other people, collaborating in different ways, in multidisciplinary ways, and then figuring out how to connect those silos together for the good of the business.
I was talking to a knowledge management person at a big firm, and I asked him, “How does the firm create new knowledge?” Not how you look at assets from the past, the precedent, and pull from all that. How do you create new knowledge? That’s what clients want from you. Part of what they want us to know the rules and what happened before, but they need new ideas or they’re going to go to consultancies because consultancies built around new ideas. How do you create new ideas in law firms? He said, “Everybody does the work. They do that Edison thing where they raise a hand when they figure something out.”
I said, “Sorry, you don’t have any teams that are sitting in a room with Post-It Notes on the wall and putting their ideas up, bouncing around and brainstorming?” He said, “Lawyers would never do that. They don’t like to share ideas.” That was remarkable as a statement, probably totally true. Sharing crazy ideas is risky for lawyers. It makes us think we’re dumb or wrong and we only love the right answer. We were here because we know how to give the right answer. This idea that in a knowledge environment, which a law firm is a knowledge environment, we don’t share knowledge. It’s baffling.
You have to encourage people to step outside their comfort zones because for so long, knowing friends that work in a variety of practices, the answer to some of the questions is, why do we do it this way? It is because we always have. That’s the end of the conversation. There’s not a lot of room for innovation from the people who are making the decisions to say, “This is the way we’ve always done it and it’s worked.”
It’s labeled as the blank firm way where this is the blank firm way and, to paraphrase Rush, “Conform, or be cast out.:
You end up in a standoff situation because if one firm is reluctant to do it and they look at their peer firms and realize they’re not doing it either, then some people would see that as the opportunity, “Let’s be the thought leader on this and step out and try it.” For others, they will say, “If nobody else is doing it then it must not be a good idea because nobody else wants to venture out,” so you end up in this weird “everyone’s afraid to make the move” deal.
The way we’ve done it for 100 years has made a ton of money and has established law firms as powerhouses in different communities. We see that that’s degrading. I think it’s probably fair after 100 years to say, “Maybe it’s time to think of a little different approach.” The book is about trying to nudge people to some systems that have existed for supply chain science that has been around for 60, 70 years with big jumps in it with companies like Walmart or Intel, and how those jumps have happened. This science has been around for a long time, not as long as the Cravath model, but it might be time to rethink a little bit.
I can hear someone at the back of my mind saying, “You’re just commoditizing the law.” Law is a noble profession. We shouldn’t operate the same way as Walmart. We don’t want law firm offices in Walmarts.
I find it fascinating because the law is commoditized now. If you talk to consumers and clients, it’s what we call legal work. I was in an interview and mentioned that we argue about the unauthorized practice of law and even we don’t know how to define that phrase. We don’t know what the practice of law is. Clients don’t know what the practice of law is. They only know they need solutions to different problems. The best person to figure this out is going to get the work. Law firms historically have done more than doing the forms, going to court, whatever that churn type practice is. We used to do a lot more than that. There was a lot of advisor function, counselor function, and that was all owned by law firms. What you see now is not that we aren’t competitive with other law firms, we are. If you continue to do the churn model, you will be competitive with other law firms.
That’s not the threat to law firms. The threat is that we’re losing to other solutions. We’re losing so-called non-legal work to other solutions. As we continue in this model, we are already commoditized. The issue that I think, is lawyers will say things like, “We add expertise.” Expertise is different from knowledge than data. Other companies can show up with data and forms, but we have the expertise, or we have relationships. We’re great at building these connections, making the deals and all this stuff if all of that is true. The book is centered around those two functions. If all of that is true, great, have your business built on systems that encourage that, not discourage it. The model discourages those two things that you’re saying are making you special and the result is we’re not that special. We’re not building expertise, we’re not honing on relationships.
You’re starting to sound a little bit like Susskind and the future of lawyers. If you’re on the lookout you need to adapt or die. It’s hard to argue with that concept, but it seems like it would take a brave leader of a larger firm to plug into the idea of, “We’ve always done it this way. It’s not good enough anymore.” Law firms are large ships and they don’t turn quickly. It seems like in my practice situation as a solo, I have the ability to turn, I’m agile and I can move in any direction I want.
It’s fun to be able to reject conventional wisdom just because I’m like, “I’m not going to do it because it’s always been done this way.” It seems like the larger firms have seen some strides. Law firms are starting to recognize that we do have to consider the business models. You’re seeing CFOs and CEOs being appointed in law firms. It seems like there’s been some change. I think your book is geared toward the solo and small firm practitioner primarily, but the idea is, certainly can be implemented.
I would point that out, although that is true that a solo can be agile, in a similar way, we are not part of a system that Jody is in a big firm, but we’re part of a system as well and it’s all influenced by culture. The courts operate the way that they operate. We don’t have a lot of control over those bars, and regulators operate the way they do. Law schools operate the way they do. Although I am personally agile as a solo or small firm owner, I’m only agile within the constraints that are put around me. I think that the argument in the book is that we need a much larger system change, not just, “Here’s what to do in your solo small firm practice.”
I think the change is going to come from the demand of lawyers. I think Todd, you and I might’ve talked about this. There was the example in Austin where people had been talking for a while about, “We should do restricted services, limited scope services.” If you know anything about litigation, if you get into a case and the judge won’t let you off the case, you effectively can’t do limited scope anymore. Phil Friday and some other lawyers got together in Austin and they lobbied the judges to create a new local rule to allow for lawyers to say, “This is the scope that I’m signing up for. This is what the clients hired me for. You have to let me out of the case once I meet this threshold.”
Now, in Austin, you can file a document that says, “The client hired me to handle from here to here. When I’m done with this step, I’m going to come and the clients already signed the withdrawal letter with the approval for that. When I come to you, Judge, you need to let me off the case.” That’s a local rule in Austin. I tell that story to say that you are right, that lawyers are agile, but they can still deal with constraints, and fixing those constraints will come from the lawyers working together. Todd can’t fix these constraints by himself. We’re not that agile. We’re not that in control. If we want to fix these constraints, we’ve got to work together.
I think about all the issues that have arisen over the bar exam. I think that’s a prime example because you’ve seen when a lot of pushback comes, that’s when they started innovating solutions. Not universally but at least it started a conversation that came from a groundswell of frustration, demand, anger from all parts of the bar and all parts of the legal community. You did see some speedy results in a unique context.
It’s amazing that the outcry that is required to change something that every piece of data says it doesn’t do what it’s supposed to do anyway. It is not working and we still had to have this mass movement to change it. Getting back to your point earlier, Jody, that the business model is working for the people who are making the decisions and changing that is going to require a lot of pushback. It’s going to require a lot of organization. One of the big core pieces in the book is figuring out how to network in a better way and how to create those connected silos of experts.
In it, I make the argument that on a supply chain if lawyers were not doing everything, which Todd knows most solos, you’re doing soup to nuts, everything as if we’re competent or the most competent person to do all of it on a supply chain or on the illegal supply chain. I argue that in that supply chain, there are two roles that are the most profitable. One is deep experts. The people who can do something no one else can do, and two are the connectors, the point of sale, the people who are building an audience. I feel like if we organize in a better way to connect silos of expertise, we’ll have an influence on changing these rules and these structures, but also will deliver better for clients.
Those are interesting concepts in the book. It starts out as the freelancer versus the entrepreneur model, and then you develop it into freelancers are ideally experts because they can exist and they can practice in a freelance system because no one else can do what they do. The entrepreneurial model, you point out that there’s conventional wisdom that solo and small firm practitioners or entrepreneurs, for the most part, that isn’t true because entrepreneurs grow things at scale and law firms are difficult.
Particularly, solo practices are difficult to grow at scale. One of the things that I’ve struggled with in my practice ever since I went out on my own years ago is how to scale it. In my attempts, I have failed. It hasn’t worked the way that I wanted it to. You do advocate gravitating toward either one or the other, becoming an expert freelancer or a solopreneur focused on providing accessibility. I love the definitions that you come to and some bullet points in the book. You describe freelancers that provide expertise as being people that make stuff, you’re crafting.
You’re like forging a sword out of raw steel, whereas entrepreneurs in your book you say they make decisions rather than making stuff. As a solo practitioner, I have to think like an entrepreneur because I have to make a lot of decisions. I’m struggling and maybe you can offer me some guidance on this. I’ll take a free counseling session. I do consider myself too as a board-certified civil appellate lawyer to have some expertise, but I struggle with this idea that I have to drill down on that rather than try and build something that’s going to outlast me.
This is a difficult thing. I heard an interview on a show called LegalTechLIVE and she has created this entrepreneurial business of helping moms collect their child support. They asked her, “Are you a lawyer? Are you a tech person?” She didn’t have any of these competencies. She didn’t know how to do any of this stuff, but she was leading this legal tech business and she pointed out that the reason is that her function is to make decisions. That’s not her role. It’s difficult with the legal atmosphere because we use the term expert and entrepreneur to apply to everyone and unless those definitions are broad as to include everyone, they’re not helpful. They’re not terms that are useful. To make it as tangible as I can, I had a conversation with my friend Megan, and she was making this decision of what kind of owner she wanted to be. Did she want to be the expert owner or did she want to be this entrepreneurial solutions engine?
I said to her, “If you’ve got this random week, would you rather spend that week writing a book or managing people?” She said, “I would rather be writing a book.” I said, “There’s your answer.” It’s because of the activities of someone who is an expert, they are different from someone who has an audience centered solutions engine. Jody, this will resonate with you. I had a conversation with somebody who’s a big firm lawyer, and they got in trouble because they weren’t answering their email within ten minutes.
This was somebody who was in the appellate division of this big law firm who their function is research and writing. Their function is to sit in a room and be a super nerd and tear some ideas apart, come up with new innovative ideas that no one’s ever thought of before in the substance of their niche area, and they’re supposed to answer emails within ten minutes. The switching costs make no sense. The point that I made in the book is that accessibility and expertise, entrepreneurship and expertise are not compatible. They fight with each other. They don’t work with each other.
You see this in big firm context when lawyers are made to do both, but you also see it in the solo small firm context when we’re told to do both, rather than connecting with other people who can help us with the things we’re not good at, or we shouldn’t be doing. Todd, my therapy session to you is you might need to let it go. At some point, if the function is to live a good life, to have some assets, and to do good work, you might have been told a myth that the sign of success for any business owner is to become Uber. That’s a myth.
They’re not even profitable as an aside and won’t be for a long time and yet we always cite them as the success model. We’re not in that niche. The legal vertical is not like that. There are not billions of potential users. We don’t have access to money that we can be millions of dollars in the whole year after year. It’s a different context. Todd, for you to become somebody who writes, teaches, and comes up with amazing ideas and changes, you’re more likely to have a statue in the law school than you are to have a three-letter code on the Nasdaq. It’s a different context so let it go and move on Todd.
It does seem like, and in mine and Jody’s practice area specifically within large law firms, you see appellate practice sections as you point out and those people generally will serve a specific role within that law firm. They’ll handle things that come up within the firm, and they’re experts at doing that. They’re also accessible from people outside the firm to be hired directly. In that business model, the day in and day out of their practices are handled by the law firm. All this administrative support that they get in that setting, but the solo doesn’t have that. You point out the Clio study in the book where the average solo lawyer is billing two hours a day. I think your suggestion is that the other six hours a day or more that are available are being spent on non-revenue generating activities.
I say non-revenue generating because revenue generation is tied to the value of that couple of hours. Those look like non-revenue generating activities, the reality is they are necessary activities. When you buy something from Amazon, you are paying for the shoes, but are paying for all the support, things that go on beyond that. The truth is when solos are working those other six hours, and they are working, they’re doing things like emotional labor, which are required that clients expect those and need those. They are part of the value proposition, but they’re not paid for because we don’t wrap that in our model. If we were doing that consciously, I’d be great with that but functionally, what we’re doing is we’re saying that we’re billing two hours when we should either as Todd should either be billing 8 hours or 0 hours. If he’s the expert, then he should be spending all his time being the super-nerd. You’re not billing all that time because you’re also doing things like research and writing and the things to become an expert.
All revenue generating in an indirect way, you should be either spending eight hours on that work or zero. You should be the entrepreneurial type that’s got a bunch of other people doing that work. Jeff Bezos is not answering the phone. He’s not going to pick up the phone and talk to people. He’s also not going in and figuring out how the supply chain connects at Amazon. That’s not his function. He makes decisions. If you want to be that lawyer, great. It’s different in the big firm context. I have gotten the response from many big-firm lawyers, “We do this already. We specialize, we collaborate. We’ve got support in the firm. We’re not doing the entirety of this supply chain.” I got to call bull on that because every big firm lawyer that I’ve talked to is like, “This sucks. This is not working. This doesn’t operate the way we think it does. We’re building neither expertise nor brand and audience connection so we’re not delivering on either of these functions, we’re commoditized.” We’re commoditized now. Read the book, take some time and think about it. You might disagree with me.
I think that’s right in the big firm context, to an extent. The opportunities are there and the structures are in place to allow for what you said but I think the practicality and the reality of it are a little bit different. It is a lot easier to cross-market between expertise areas because I can walk down the hall and find somebody who knows a lot about something that I know nothing about whatever it might be and vice-versa. I think you’re right, unless you have someone the in-between person that’s facilitating those connections and helping make those happen. Frankly, tying it to revenue a little bit because, back to Todd’s example, that’s all non-billable work, and it’s part of the workday that’s not the 6 or 8 hours. You need to be building to do that. That’s where I think it needs to change in terms of management and compensation.
That’s not a value creation issue, that’s a value capture issue. That’s a pricing issue. That’s not because those other hours of unbillable work are not valuable to the client. We aren’t capturing that value. In most cases, those other hours are more valuable to the client. Those are the hours they care about. We tend to get fixated on those two hours of super nerding but they care a lot more about those other things. I do think that big firms have the resources available to do this well but they just don’t and they don’t optimize for it. It requires structural change and a real rethink of what it is that we offer. I think a lot of big firms are talking about the threat of consultancies. The law firms have a lot to learn from the consultancies on how they create new knowledge, how they come up with new ideas, how they capture the value from those new ideas, and how they deliver them well. I think there’s a lot to learn there.
In my practice, the suggestion is I can drill down deep and become the quintessential Mike Whelan expert, and spend most of my time billing rather than administering because I can get help for those things. I can bring staff that can fulfill those functions and takes that load off of me so that I’m spending more of my waking hours generating revenue. Setting aside the merits of the billable hour versus some other option but what if I said, “No, I want to manage people.” How do I approach using your legal supply chain model, is my task then to go out and generate as much work as I can, bring it all in, and then find people to dole it out to? How does this work?
To explain the solopreneur, I’ll tell you about the legal supply chain manager, which is the person that works for that solopreneur and what their functions are. There are four competencies for that person. They are design, source, build and deliver. The design has to do with clients want whatever, let me come up with ideas for serving those needs. Source has to do with making sure the best people are doing the right pieces of those things. The build is about quality control and delivery is about customer experience. What the solopreneur does is think about those four things and try to build on those four things. Their function is to coordinate the silos to deliver better for clients. You’ve got a bunch of siloed nerds out there doing great at what they do but if Todd is spending most of his time trying to find appellate cases, then Todd is not doing what Todd is best at.
Todd should be doing different work but you are not going to do it unless you know that someone is out there trying to connect you to work. You can’t survive unless there are systems in place where you can connect to the work. A simple way to do it that I make reference to in the book is there’s a company called LAWCLERK and you can go on there and you can hire people. You can be hired by people. It’s a great way to network, but in general, what you need are those platforms and organizers. You need people who are getting together to do these individual cases, but you need somebody to play that coordination role. If you want to beat the solopreneur, that’s your function. Your function is to do the work that is required by that connection. The clients will tell you what it is that they need. Your core competency is project management. That doesn’t sound sexy. It doesn’t sound cool, but your core function is executed.
It’s not expertise. The experts will do the innovation threshold required for the industry, but your function is executed. In the same way that Todd is going to go become a super nerd about what he does, your job is to become a super nerd about project management, marketing, coming up with solutions, and design functions. If you want to be that person, great, but stop calling yourself an entrepreneur if you’re not doing those things, because you’re not. You’re just a business owner, which is fine, but you’re not an entrepreneur.
I always thought that the difficulty in filling that role would be accepting, taking a step back from being a lawyer because we all went to law school ideally to be lawyers, but you’re talking about a CEO kind of role, and even project management is more accurate because CEO is even a little different role than that.
I think all lawyers could probably use that advice.
It is tough to let go of that stuff and understand that. I’ll give you an example, Jim Hacking. He’s running a solopreneur firm. He still keeps his toe in practice and he takes cases that matter to him. His associates will do the work that makes money and keeps the firm going. He gets to do cause lawyering for a couple of hours a day, sort of risky. There’s research in doctors that shows that keeping your toe in practice might undermine your long-term skills if you’re dabbling in it but you do have that capacity. You have the ability to take some of these passion cases so you can stay in the practice of law, but that’s not your primary function.
My next question then to follow up on that is, let’s say I did adopt that model. I’ve become a project manager for my firm. I’ve got the talent lined up, and the experts. I can get experts in any number of subjects that would benefit trial lawyers and fit in my practice area like trial support, error, preservation, jury charges, summary judgment, motions, appeals to specific courts for supersedeas issues to list off the ones that come to mind.
The biggest constraint to following that model is the ethics rule that says, “You can pay somebody as a contractor what they have charged you but you can’t upcharge their fee.” Someone’s going to have to crack the nut of how to turn this into a profitable enterprise without being in violation of the ethics rules. It’s not even in the rule. Specifically, it’s an ethics opinion. I don’t mind saying that I think it’s incorrect that the analysis and that ethics opinion is wrong and it wrongly hinders solo and small firm practitioners from being able to make money and serve their clients better. That opinion aside, I haven’t quite figured out how to crack that nut and stay on the right side of the ethics line.
This is going to be a bit of an unpopular opinion. If you are a solopreneur, if you’re that type of person, part of your function is to push up against constraints to figure out where your constraints are and push back on them. That’s part of the function. A lot of people will tell me, “I can’t do solopreneury things because I’ve got this constraint.” That’s true, but Walmart has the constraint of physical space. Restaurants have the constraint of labor laws that make it so that they can only work many hours. Every business has constraints. What I see with lawyers a lot with ethics things is they’ll stay way afield of some potential violation.
They’re afraid of some potential violation that they’ll stay far away from it. They never dig in and learn the rules. They never go figure out what my constraints are and how I can creatively push against them and they never figure out how to do lobbying. How to push back on these things and push changes in the rules. That’s what Phil Friday did that I mentioned in Austin. You are right that that is a potential constraint. My answer to you on that specific thing is that’s your job. If you want to be that person, go figure it out.
Push back against it, and if it ends up being a constraint that you can’t break, then you turn your business in another direction. That’s what all of these are. You saw GE, who went from whatever it was that they did early to making these lights. You see lots of switches, Procter & Gamble, switched what their business model was early. You see a lot of changing business models. When you’re an entrepreneur, you have to be willing to let go of your early years if they don’t work. If the constraints get too heavy and you see a better opportunity, go do something else. Emotionally, that’s difficult for lawyers, but that’s the work.
That’s the proverbial pivot.
It brings us back to your point. It’s good to continue having these conversations as a profession about some of these constraints, whether they make sense in the current environment, and constantly revisiting those. The answer can’t always be, “This is the way the rules have always been.” The rules have to be adaptable to the practice of law as well as within the bounds of ethics. As the practice of law changes, sometimes the rules have to change too.
Todd, if you’re a community organizer, if that’s part of the function of being an entrepreneur and it is, then you can be the host. You can be the person who goes and creates that tension and that movement. You can use storytelling and persuasion to turn that tension, that everybody like you feels, everybody is annoyed by this ridiculous ethics opinion. You know that that energy is there, but somebody’s got to organize that energy. Somebody’s got to create the tension that will make a change. Right now, it’s a bunch of lawyers sitting in their fancy offices griping about it and it’s never going to change if that’s what we do.
That’s a great point, Mike. It’s difficult to be the one that’s out there pushing against the constraints sometimes, but sometimes it seems like that’s what our industry needs so that we learn to think differently and attack problems differently.
Thankfully you were trained just to do that. The number of lawyers that I see sitting around complaining about bar associations is fascinating to me, as if it’s not the Bible, people. This is not the immutable word of God. These are rules created by humans who were trying to do the best with what they understood of the problem. You can create some advocacy. You are trained in that, do that work.
Times do change and I think for those who complain about bar associations, I’m a bar nerd myself and I would invite them to participate, get involved, and don’t just rant on Facebook about how the bar is out to get you. As a short personal aside before we wrap up, Mike was the only law student because of his forming of the future solos group who would come and participate in Austin bar solo and small firms section activities when he was a 2L at UT and that’s how we got to know each other because I was involved in that section.
I’ve chaired that section for a time. I’ve been proactive in going out and networking. You mentioned changes and approach to networking, doing things that were not traditional. Law students didn’t do this and we’re still all these years later trying to recruit future members to the bar from the law student body. That was a fascinating time and I was glad to get to know you when you were in that role. It’s been a pleasure to stay in touch with you and follow you up to this point.
I appreciate that. Most of the good ideas that I’ve had, it’s because I was too stupid to know you weren’t supposed to do it that way. Stay ignorant kids. That’s the lesson.
Ignorance is the true driver of innovation.
It seems like hearing these conversations and following what’s going on, we’re at a time where if there’s ever been a groundswell for a lot of significant changes because everyone in the legal community and state had to revisit the way they practice law in the last months, it makes a lot of opportunities to revisit some of these things and say, “We’ve always done it that way but look at how all these other things have worked. Let’s talk about how we can incorporate some of that going forward.”
Whether you’re in a big firm or a small firm community, build social capital and use that social capital to create change.
That’s a perfect ending point. Mike, thank you for coming on the show. We’ll mention the book one more time, Lawyer Forward, and it’s available on Amazon. It’s full of good stories. You’ve heard some of them on the show. I highly encourage everyone to read it. It will make you think about your practice and your role in the legal system.
Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to firstname.lastname@example.org.
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About Mike Whelan
Mike has worked in logistics, solo law practice, and legal media. He teaches about the overlaps between those activities and what they mean for attorneys and the companies that aim to serve them.
Through his speaking, consulting, and writing, Mike aims to improve the lives of solo attorneys. The legal industry has many well-documented struggles. If we can harness the minds and compassion of solos—roughly half of the profession—we can have real impact on an array of social issues, including access to justice. That is Mike’s mission.
Mike lives with his wife, four children, dog, two geckos, four cats, two birds, and hedgehog in the Kansas City area. (He needs a nap.)
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