Originally published on September 6, 2011 in our free SmallLaw newsletter. Instead of reading SmallLaw here after the fact, sign up now to receive future issues in realtime.
I have a confession to make. Since covering the 2011 ABA TechShow for TechnoFeature, I've been wrestling with a vexing question …
Who the hell is Jay Shepherd and how will he earn a living?
Let me explain. On the eve of TechShow, a veritable Who's Who of legal pundits took the stage at Ignite Law 2011: Tom Mighell, Dennis Kennedy, Kevin O'Keefe, Carolyn Elefant, Marc Lauritsen, Jim Calloway, and of course Jay Shepherd. Wait a minute! Jay who?
Well whoever he was, he considered it appropriate to announce during his six minutes on stage that he would close his employment law practice to start Prefix, a consulting firm to help law firms abandon the billable hour.
My first thought was: Who cares? My next were: Too much imbibing at the cash bar? An attempt at free advertising? A cry for help? Still, I let go of the issue and chalked it up to a lawyer's ego (plenty of that to go around). So imagine my surprise when none other than the ABA Journal covered Jay's announcement.
Whoa. This guy's career move was national news? The whole episode got me wondering — why would anyone abandon a successful law practice to become a consultant? Not that it's unheard of. After all, a few years ago I did just that, only to be drawn back to the law once and for all.
While this SmallLaw column might arrive too late for Jay, let me explain to those of you still managing small law firms what will likely happen to Jay since I have traveled this path.
Commanding Attention Versus Begging for It …
Not long after I slipped the surly bonds of law practice in 2006 to live the jet-setting life of a legal practice consultant, I found out that lawyers don't think they need advice, and certainly won't pay for it.
Even free advice was of no interest to most lawyers. After all, if they had to change anything to make the advice work then it really wasn't "free" was it? Change is hard, new hardware and software costs money, and clients hire people, not technology. To the vast majority of lawyers, one good afternoon on the links and a vintage IBM PC (circa 1999) was more important than all the consulting in the world.
Of course, sometimes I would get a prospect to agree to a meeting. Inevitably however, I found myself talking to someone from IT with no grasp of the legal process, or explaining things to a partner who had already decided to cut out the middle man and have his teenage kids throw together a Facebook page. Ultimately, the process was more like selling encyclopedias than delivering professional services. And at no time did I feel as if I were selling "knowledge," a recurring theme in Jay Shepherd's promotional materials. On the contrary, I frequently had to beg for attention instead of command it, as I had when I was a lawyer.
Even if Jay manages to avoid such obstacles and get hired, how will his new business compare to his old business? We lawyers adhere to a simple principal — clients pay to cure pain, ward off fear, or have us deal with unpleasantness. Of course, it doesn't hurt that the law is utterly opaque, attorneys and courts have little patience for lay people, and the legislature and courts throttle competition from out-of-jurisdiction lawyers while keeping the barriers to entry high for recent law school graduates. All in all, you might say that clients have to hire us to get anything done.
By comparison, being a consultant is like playing Vegas. The field is clogged because any mope can call himself a consultant. Even when consultants get hired payment is still at the customer's mercy. Worst of all, consultants must span the credibility gap with prospects by selling themselves around the clock. That doesn't leave much time in which to sell knowledge — or help lawyers sell knowledge instead of hours.
Room for One More?
So, is there room for one more practice consultant in an unregulated field crowded with tireless self-promoters? After my experience a few years ago, I recommend that Jay keep one toe in the legal practice tide pool for now. And for all we know, that might be his game plan. When Jay also used his Above the Law column to announce his plans, one commenter sarcastically quipped that: "he said he was closing his law business, not necessarily quitting law practice. I expect that he will work out of his (mom's?) basement … as a solo practitioner doing legal work for several of his existing clients, but without having to carry the risks and costs of employees."
But practice consultants who try to wear both hats are often lousy lawyers. What's more, skills become dull surprisingly quickly, learning new tricks is never easy, and having the confidence of courts, colleagues, and clients is as important as making a good argument. Being a lawyer is as much about relationships as anything else, and those relationships rely on seeing and being seen by the right people every day.
What's a would-be consultant to do when he's too busy selling himself to be at the closing table, in the office, or in court? Does Jay understand what he's getting himself into?
Here's a lawyer about my age and experience level, with an established practice in a major metropolitan area, strong academic and peer credentials, several blogs and a popular column who experienced his share of wins and notoriety, and who by all accounts could have continued to practice.
Why the sudden zeal to fix our industry's broken billing model? Is it because he's a fellow at the Verasage Institute, an organization so inscrutable its name isn't even a real word? Or is it because the Institute taught him to "bury the billable hour and timesheets" as it boasts on its web site? Or is it because, as Jay writes in his biography on the Verasage web site, he is on a "mission to save the world from lawyers, and to save lawyers (and other professionals) from themselves"?
Or Has Jay Simply Painted Himself Into a Corner?
I guess what I'm saying is that Jay Shepherd might want to take a lesson from my experience, and not throw the baby out with the bathwater. He might also want to refrain from predicting the future at national events just in case things don't work out. And in the unlikely event that he's forced to take up law practice again, he might want to keep certain skills honed so he doesn't have to re-learn how to maintain credibility with his peers, acquire clients, try cases, hire good employees, and most importantly, fire bad ones.
I mean, look at me. As critical as I am of our profession and its broken systems, I still practice law and keep track of hours, expenses, and other business minutiae. Why? Because to paraphrase Churchill (and channel Tocqueville), the legal business is terrible … but consulting is far worse.
Written by Will County bankruptcy lawyer Mazyar M. Hedayat of M. Hedayat & Associates, P.C.
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