The Atomic Unit of BigLaw

 

Clash of Cultures - © 2016 Brenton B. Miller
Clash of Cultures

In my post about about analytics here, I noted that the challenge of performing certain analytics tasks in the legal domain is simplified by the well-defined and publicly accessible caselaw source data used in the analysis:

The cases themselves are uniquely named and codified, as are the jurisdictions, courts and judges. Parties/roles and names of counsel, litigants and other participants have been vetted. Even softer metadata like issues, actions, and outcomes have been successfully extracted and disambiguated. Of course, all of this high quality data is continuously supported by a stable court system and a large private publishing infrastructure. The result is a target-rich content environment for analytics and one that accommodates relatively simple user interfaces. Unfortunately, the same does not hold true for legal work not directly or completely circumscribed by court filings (and to a lesser extent, certain regulatory proceedings). Factor in all of the ancillary activity inside of the law firms related to this sometimes rich but more often impoverished external data, and you have the kind of complexity that can’t be untangled by analytics alone. 

Let’s explore this observation a bit further in the context of how law firms manage matters by starting with a rather philosophical question: What is a matter? The answer depends on which part of the elephant you’re blindly feeling, but generally speaking there are two ways to answer the question:

  • The Legal Event Definition. A matter models a legal event in the real world such as disputes; deals; creation, dissolution or change in legal status of individuals or entities; actions by regulators, etc. The matter primarily serves to structure and group content, activities and information collected by the firm and to facilitate professional and firm processes related to the legal events.
  • The Billable Event Definition. A matter models the work expended by firm timekeepers based on units of time and related metadata. It primarily serves to group together these units of time to facilitate client billing and internal firm financial reporting and management.

Of course, the billable event definition is dependent to some extent on the legal event one. Law firms do not expend time ad hoc for clients and arbitrarily create matters that have no correlation to real legal events and the actual legal projects being worked on. The key point here, however, is that structures expedient for billing and reporting do not always correlate with structures that work best for managing legal events and related content. The tension between these two approaches to structuring matters results in significant breaks in how matters are defined and tracked. Frequently, the billable event definition prevails either because of system limitations or for the sake of billing or procedural convenience. Some examples that come to mind:

  • Separate matters opened to simplify bill splitting between multiple clients;
  • Separate matters opened to address differing tax implications in multiple jurisdictions;
  • Separate matters opened for different practices or different offices to simplify reporting and billing partner control;
  • A single matter maintained for shelf offerings with multiple takedowns or other kinds of multi-part financings to simplify timekeeping and billing;
  • A single matter maintained for periodic or other forms of repeating or cookie cutter work or as a “general matter” catch-all to avoid the hassle of new matter openings;
  • Projects parked in preexisting matters to game or circumvent firm procedures or optimize partner financial credits and client relationship control;
  • Matters opened to accommodate client-specific special billing requirements.

The tension between billable and legal events is not the only problem for structuring matters. Legal events are often complex and messy and lack well-defined borders, beginnings and endings. They morph and evolve over time. We frequently see problems arising from inconsistent handling of litigation cases (i) brought in separate jurisdictions but related by subject matter, (ii) split or consolidated during the course of the matter, or (iii) appealed to a higher court. Likewise, complex M&A matters can spawn bank financing, securities issuances, advisory work, asset transfers, regulatory approvals, litigation, etc., and each can be treated as independent legal events worthy of their own matter structure or as part of a whole. And all of these problems just scale up in BigLaw because bigger law firms tend to generate more matters that span offices, practices and legal jurisdictions and tend to encounter more matter integration challenges from firm mergers and lateral hires.

The bottom line here is that matters – the presumed atomic units around which all substantive legal work revolves in law firms – are really more like atomic clouds that don’t behave as expected when observed! (Shout out here to quantum physics geeks.) The strength (usefulness) of that atomic bond will vary in complex and largely uncontrollable ways, but virtually all mission critical law firm systems are built around a unitary matter concept that neither recognizes the tension between the billable and legal event definitions nor accommodates the ambiguity and complexity that inheres within matters. The brittleness of the matter concept in law firms is propagated across applications that are all based on a singular matter ID used as a (unique) key in all of the firm’s matter-related systems. Since most law firm systems use common matter IDs as their keys and are built on the relational database model, they can be integrated for querying and data-sharing purposes. That’s nice, but these dependencies remove flexibility and effectively force all systems (regardless of unique internal features) to be constrained  by the specific requirements and limitations of the most “critical” of the mission critical matter-based systems.

Time (and Billing System) Critical

We all know that the 1000 pound system gorilla in Big law is the time and billing system (TBS). Care and feeding of the TBS drives how and when new matters are opened even if it doesn’t host the matter opening workflow or push matter metadata to others systems. Chances are very good that what’s most convenient or addresses a limitation in the TBS will prevail over what’s most convenient or addresses limitations in other matter-specific systems. It’s safe to say that in most BigLaw firms the TBS is the privileged first-born whose peculiar eating habits are indulged, and the matter-based KM systems in particular are the abused stepchildren left to scrounge for table scraps left by the TBS! 😉 The indigestion that KM folks experience as a result of the previously noted accommodations made for TBS-driven matter management includes:

  • Misleading or erroneous (dynamic) joins between matter level metadata and documents in enterprise search applications;
  • Difficulty collecting an accurate and complete set of closing documents or pleadings;
  • Matter level templates for matter pages and folder structures that require modification when applied;
  • Problems with trying to generate all kinds of matter-level reports for practice management purposes;
  • Difficulties creating and updating experience lists for business development that accurately reflect work done by the firm on different types of matters;
  • Too many exceptions and inconsistencies in how matters are managed to implement standardized or automated workflows for things like matter opening and closing, after-action reviews, matter team staffing, application of document retention rules, etc.

The schizophrenic way in which law firms define matters will also impede the successful BigLaw adoption of big data and cognitive computing technologies for analysis of matters and things like automated extraction of matter metadata and predictions of costs of different types of matters. The initial effort to train/learn will likely go up and the usefulness of the analytics will likely go down relative to the messiness and “noise” inherent in all those poorly defined matter structures.

Circling back to the quoted observation at the beginning of this post, we can better see now why the success of the emerging caselaw analytics tools will not be easily transferable to matter-based analysis inside of law firms. Even though these caselaw tools deal with judicial decisions that are mostly unstructured text, those decisions are nevertheless contextualized and supported with well-defined metadata about the cases, the judges, parties, courts, related documents, etc. The critical takeaway here is that online caselaw collections, as tapped into by analytical tools, are complete and carefully curated artifacts of a highly formalized class of legal events. Firm matters at first blush look a lot like what’s tracked in these commercial systems and, indeed, may arise from the same legal events and associated content, but in the end are less formalized and subject to frequently competing definitions of what is inclusive to a specific matter. This fundamental matter definitional problem exists before we get to additional confounding issues like incomplete content capture and inconsistent application of naming and tagging conventions (to say nothing of security and access issues that don’t apply to public court filings).

What Can KM Do About the Problem?

Unfortunately, KM is not in a great position to fix the conflicting matter definition problem. That’s because, as noted, KM generally lacks the clout required to insist on any kind of rigid standardization that eliminates the TBS exceptions. Furthermore, KM applications are generally dependent on an overly-simplistic unitary matter model. There’s not a lot of hope of overcoming either of these limitations in the short-run, but you can still take some positive steps toward minimizing the problem. I’d be interested to hear about solutions others have come up with, but here are a few of my own experience-based suggestions:

  • Educate the finance function in your firm about the problem. You’d be surprised at how unaware finance staff can be about the unintended consequences of their jerry-rigged TBS fixes. That’s not to say that your appeal will be acted on, but sensitizing finance staff to the ripple effect of their actions can potentially redirect thinking toward solutions that are less disruptive to the KM function or provide more advance warning of impending changes. The more quid pro quo you can offer (e.g., sharing with the finance function useful matter metadata being collected by KM), the more sympathy and cooperation you’ll likely receive.
  • Educate the IT function as well. Matters are just a vague legal abstraction for lots of IT staff and they often need assistance in understanding the complexities and ambiguities of how legal and billable events come together as matter entities. It certainly doesn’t help that virtually all of the vendor systems and tools IT deals with only support a unitary matter framework wherein one matter is presumed to have a single set of data points (descriptions, values and tags, participants, activities/events, documents, etc.) that all link to each other equally or in rudimentary relational ways. By working closely with your IT team, you can help them to understand the problems that spool from overly simplistic matter-centric applications. Fixing these problems can be hard, especially if you’re stuck with off-the-shelf solutions with limited configurability, but IT-types love a technical challenge and, together, you might be able to devise strategies for minimizing the negative impact of poorly designed matter applications.
  • Ally with the business development, risk management, conflicts and records functions in your firm. These functions generally “get it” when it comes to understanding that the ideal relationship of matters to legal events is often broken in matter-based systems. Like KM, they confront the consequences of the problem every day when trying to track experience, review conflicts, security and other matter risks, file documents, etc. They can help you lobby for process and system changes that might otherwise be unpopular with or under-prioritized by IT, finance and firm administration.
  • (With IT assistance) assess your options for uncoupling matter tracking from the TBS.  Determine if your matter management infrastructure is rigidly tied to a “flat” model or allows for submatters or related/sibling matters that you can activate without adversely affecting billing and reporting processes. Alternatively, determine if you can develop a legal event tracking solution in SharePoint or some other general purpose tool and use that as a KM-controlled “shadow” matter hub. (Just bear in mind that alternative systems and workarounds may gain you much-needed flexibility but will burden you with updating/maintenance responsibilities.)
  • In your document management system explore ways of using profiling, tagging and foldering to subdivide content within a matter-centric space. A well-defined and consistent foldering or tagging schema can minimize problems created by “general” and other reused matters. Alternatively, copy or link documents from your work-in-progress DMS libraries to a KM repository (perhaps a separate DMS library or SharePoint) that is associated with your shadow matter tracking solution.
  • Do not rely exclusively on the main matter ID as the means for integrating/joining content in your enterprise search system. Work with IT and your search vendor to crawl content based on the shadow matter profiling, foldering or tagging. There are ways to do this so that the matter filter in your search system functions as if you have virtual submatters or sibling matters. Your main matter management system doesn’t have to be changed to support this.

Educational efforts and band-aid system fixes can only go so far, and they inevitably bump up against change-resistant lawyers, administrators and staff. The duplicative impact of matter shadowing solutions can add to confusion at the same time they are addressing ambiguity and complexity. The boogeyman of security overlies everything and rears its ominous head particularly when the solution involves duplication of content into alternative collections not based (solely) on a firm’s standard matter management workflow. Indeed, we are still a long way from the ideal, rational environment in which matters – the fundamental atomic units of law firms – reinforce useful analytics rather than blur their effectiveness.

The good, or at least intriguing, news is that the world is changing in ways that are working in through the seams of BigLaw. The cracks are getting bigger as the ironfisted rule of the billable hour loses its grip. Perhaps as the service model transforms in BigLaw and billable hours become less important, the corresponding dependency on the billable event definition of matters will also lessen along with the potential for conflict with the legal event definition. Likewise, new technologies are emerging that may supplant today’s matter systems built on conventional relational/SQL platforms. Document-based NoSQL and graph databases with more flexibility for modeling complex legal events and data lakes with powerful ingestion, data transformation, search and analytics capabilities for exploring BigLaw big data may help us fix the problem at the atomic level. Who knows? Maybe someday soon we’ll be able to split a matter or fuse two of them together without blowing up the whole law firm!

2 thoughts on “The Atomic Unit of BigLaw”

  1. Another brilliant article, Brent. And thanks for giving me something new to worry about (i.e., my naive belief that a matter was a matter was a matter). Very insightful.

  2. Law firms’ acceptance of the muddle of matters is a mystery. Physicists rely on fundamental particles. Geneticists count their C, G, A, and T bases and their pairs with precision. Certainly a matter is a complex object, but there are well-established information management techniques at hand—tags, hierarchies, cross-references, linking, metadata, and so on. It’s hard, and tedious, and annoying to lawyers (so should be taken out of their hands) but knowing what you know, what you’ve done, and how is the foundation of everything.

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