Rather than best practice, my law firm was really hodgepodge. Most of my practices, I adopted from attorneys I worked for. I copied several practice forms from a “Bridge the Gap” continuing legal education course. I changed a sentence or two in my forms as I bumped into cases that suggested a change. When a problem arose, I changed or added policies. I felt like my practice policies were good. Even so, I never analyzed if my practice policies were smart, good, promising or best. I never saw practices as opportunities for firm growth. They seemed to work and that was enough.1
A Successful Practice Requires Review
For me, vulnerabilities in my practices gave a hidden enemy the opportunity he needed to exploit – millions of dollars. In mindfully reviewing the vulnerabilities in my practices, I discovered something else: that by not having a systematic review I missed key opportunities for practice growth. The first hint that I may have missed opportunities was that I hadn’t even heard of “Smart Practice.”
I thought practices were good or bad. If they got the job done, they were good. Inherent in analyzing the practice was keeping cost down. Nowhere in my analysis was taking advantage of idle opportunities. Smart practices take advantage of idle opportunities at low cost and little risk.2 Simply being open to ask this question may make a difference to your bottom line – are there idle opportunities in our practices?
A Smart Practice Example
As part of an internal investigation surrounding a hidden enemy (the one who stole millions), my law firm implemented a “customer satisfaction survey” that went out to our clients after a file was closed. It had the same “rate on a scale of 1-to-5” questions you might expect on most customer service surveys with some targeted questions added. Most clients returned the survey in some form (some were fully completed others were partially completed). All of the survey information was useful. What we did not anticipate was those clients inquiring about additional services on blank section on the bottom of the survey. The request went something like this, “Do you do wills?” or “Who should I call with a bankruptcy question?” When the survey returned, these hand-scribbled notes were idle opportunities. The temptation was to make a knee-jerk reaction and change the survey and the practice to take advantage of these idle opportunities. The better practice was to implement a Possible Practice first.
Test With a Promising Practice First
Just like a Smart Practice or a Best Practice, a Possible Practice is a recognized method of introducing a new or modified practice. The idea is to introduce the change in a formal way and on a small scale so that it can be tested and modified until it graduates to a Good Practice or Best Practice. Expect change, new policies rarely survive their first encounter with real people.
So in our example, we might introduce a Promising Policy that formalizes an actual question on the survey form something like “Thank you for trusting us to to handle this matter for you. Do you have other matters that we could help you with?” For those who answer, we may have a formalized policy on calling them to flesh out more details and make a determination of how we might help. Each opportunity would be tracked so that the value of the policy could be quantified. For example, if questions from the survey were resulting in numerous referrals, we may consider adding a new practice area. At each phase the policy would be tested, modified and tested again. For example, changing the survey question to “Do you have other legal questions we could answer for free?” may increase the response by almost double.
A Note On Communicating with Regulatory Authorities
While developing a Promising Policy, the best practice is to communicate regularly with any regulatory agencies that govern your practice. In my own mind, I did not consider letters of this type to fall under advertising regulation (because they were to existing clients). During our investigation, however, an investigator for the bar told me that he “considered any communication [where there was no ongoing representation] to be improper solicitation.” Since opinions vary widely, the best practice is to simply keep the Regulatory Authority in the loop.
Scaling a Possible Practice
Once a Possible Practice has been tested, you may choose to abandon it or make it a long term part of your law firm. If the Possible Practice tested well, you may want to scale it across your whole practice. At this point, the practice may shift from a Possible Practice to a Good Practice. Or, you may choose to keep it as a Possible Practice until it is scaled. Why? Scaling itself may take several tests and modifications until it works smart. For example, talking to a few prospective clients and directing them to the right place (internally or externally) may be a small investment. Once the policy is scaled, it may be a full time job. The schedule for sending out the surveys may need to be adjusted so that all of the work doesn’t fall on one particular week or one particular person. Scaling may benefit from the strategic use of technology. And on and on. Even so, once the practice is viable, at most it can graduate from a Possible Practice to a Good Practice. There is one more step required before a Possible Practice can be a Best Practice.
Best Practice Consider Vulnerabilities
Please allow me a little definition leeway to clarify the term Best Practice. It is a bit of a misnomer in that it implies finality. The better term would be just that – Better Practice. I cringe a little when I use the term Best Practice because it seems final, “well we are the ‘best’ no need to improve.” When I use the term Best Practice I mean it as fluid. As a practice that should be revisited periodically to ask the question, “Can our best practice be better?”
But a Best Practice is only a Good Practice until it is tested for vulnerabilities. This might be as simple as brainstorming internally where the Practice is weak. Here are some sample questions to consider:
Where could someone take advantage of this practice?
Who inside the law firm could take advantage of this practice?
Who outside the law firm (vendors, etc.) could take advantage of this practice?
Is there a way to improve reporting to guard against weaknesses in this practice?
How can we verify information that is being reported?
I would recommend hiring someone outside of the firm to look for vulnerabilities in the Practice. It’s hard to see weaknesses in your own work. A person with a creative mind may be able to see things from a totally different perspective. Also, if you do have an enemy hidden in your law firm, he or she might be less willing to act if they know that the law firm is randomly being examined by third-party consultants. The cost of outside consultants is nominal when compared to the value they add to the firm.
Regardless of what it is, the Best Practice should be systematically revisited until it is better. This is the key to successfully responding to technology, outsourcing and a legal industry that is changing moment by moment.
### Brandon L. Blankenship
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