Tuesday, January 29, 2008

Introducing MoneyLawyer

And so a practicing lawyer joins the ranks of MoneyLaw. I practice in a litigation boutique where I represent a broad range of clients. Frequently my firm is local counsel for major companies, which gives me the benefit of working against and with law firms of all sizes on a daily basis. Many of my opponents and co-counsel are graduates of upper tier law schools.

I read Moneyball last year and it fascinated me. Then I found this blog discussing how legal academe may systematically undervalue certain types of high-performing law professors, the same way that professional baseball systematically undervalued certain high-performing players. From this vantage point I started thinking about how Moneyball principles might apply to the practice of law. In my experience, the legal market significantly undervalues some of its participants and overvalues others. We are beginning to see some market corrections, such as Nancy's ongoing discussion on the death of the billable hour and Mike Dillon (general counsel for Sun Microsystems)'s preference for boutique law firms over Big Law.

My purpose here is to bring some practical insights on how Moneyball principles apply to the practice of law, particularly litigation. I want to begin by examining what is evaluated in the legal market and who performs the evaluation. The "what" consists of legal talent (lawyers and law students) and litigation tactics. The "who" is more complex, consisting of five market evaluators:

(1) Lawyers evaluating litigation tactics
(2) Clients evaluating lawyers
(3) Law firms evaluating potential hires
(4) Law schools evaluating law students; and
(5) Services that "rank" lawyers and law schools.

These market evaluators often base their decisions on traditional metrics, but these metrics do not move in step with what makes an effective advocate. For example, the ability to write clearly and persuasively does not follow firm size, class rank, law school, or the other proxy measurements of lawyer talent nearly as well as the evaluators seem to think it does. As a result, legal talent and litigation tactics become overvalued and undervalued in the market, as the case may be.

I will discuss these market failures in future posts. My goal is to determine what makes an effective advocate and find methods to identify effective advocates. After all, this is the central goal of legal market participants--an effective advocate is what lawyers want to be, clients want to hire, and law schools want to produce.


Blogger Tim Hadley said...

Welcome - I look forward to seeing the discussion that the academic lawyers have begun expanded to apply to the world of law practice!

I must admit that I haven't read Moneyball, which perhaps disqualifies me from this discussion outright. But I have a question: Do you think that the evaluation of litigation tactics by lawyers is a market evaluation in the same sense as the other four examples you listed?

I'm not sure lawyers choosing litigation tactics are evaluating a market in the same sense as one chooses lawyers or law students in a marketplace. There's no scarcity of tactics in the same sense as there is a limited number of lawyers in the world, or practicing in a particular specialty in a particular city. (Some would say that the word "scarce" is inapposite when discussing lawyers, but I will leave that to others to discuss.) When a litigator chooses a tactic, that doesn't deprive someone in another firm or the same firm of the opportunity to apply a similar tactic in a similar case; but if (to take item (3) as an example) a law firm hires me, then that removes me from the market for employment and another firm can't hire me as well.

Tactics do, however, have both direct and opportunity costs to those who employ them, but it might be the clients, and not the lawyers, who bear the brunt of those costs. Lawyers might experience the cost of a bad strategy only in the loss of reputation and business from the client involved.

1/29/2008 11:44 PM  
Blogger Marie T. Reilly said...

Welcome to MoneyLaw Moneylawyer.

I'm a legal academic now. But I was a commercial litigator and transactional lawyer before. You've got me thinking about how MoneyLaw principles might appy to transactional practice.

1/30/2008 8:36 AM  
Anonymous MoneyLawyer said...

Thanks for the welcome. Marie, I'm looking forward to seeing some posts on transactional practice.

Tim, you are right that selecting a litigation tactic is more akin to a public good while selecting lawyers is more akin to a private good. Moneyball deals with both kinds of goods. The Oakland A's developed a system for choosing which players to acquire (private good). Once acquired, they encouraged the player to apply certain tactics like drawing walks and taking more pitches (public good). These tactics led to more runs and more wins for the team.

In litigation, the goal is to achieve a favorable result for the client. When a lawyer selects a tactic that does not help achieve this result, the client always incurs the costs. Even reputational harm to the lawyer can affect the client's chances of winning a motion. Of course, it's not always easy to identify which tactics help and which tactics hurt. What I have seen is lawyers and their clients overvaluing tactics that actually detract from their case, which is what I plan to write about in future posts.

2/01/2008 5:24 PM  

Post a Comment

Links to this post:

Create a Link

<< Home