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Applying military theories to the practice of law

Let’s have a look at a few ideas from the military that might help us practise the law more efficiently and more effectively. 

Brigading

If one ordered a quail pie at a hotel in the 19th century, an experienced chef would set about preparing the pie, including all of the associated tasks: roasting the bird, preparing the sauce and baking the pastry.  A busy kitchen would therefore require multiple chefs, each very experienced.  This all changed in the late 19th century with the arrival of Auguste Escoffier – a chef who had spent time in the French Army.  Escoffier decided that this model was not efficient.  Working at the Savoy Hotels of Paris and London, he developed what became known as the ‘Brigade system, This involved a sole senior chef who managed the whole kitchen, with each stage in the preparation of a meal assigned to a specialist team.  In this way, the process was a lot more efficient and cost effective, as evidenced by the fact that modern restaurants still use it today. 

The lesson for the modern in-house legal team is inescapable.  Most teams have matters that include work that is appropriate for an experienced lawyer, as well as work that is appropriate for junior lawyers, and work that is really best done by non-lawyers.  Many teams handle this sort of workload using the pre-Escoffier model, with one experienced lawyer responsible for all of a particular matter, including all of the tasks (like formatting) that perhaps aren’t best done by an expensive lawyer.  Efficient teams operate more like Escoffier’s Brigade system, where the right person is assigned to the right job, with a senior person managing the whole process.

Mission Command

Cardigans (the knitwear) were named after Lord Cardigan (the dandyish, incompetent cavalry officer who led the infamous charge of the Light Brigade during the Crimean War).  He received an order that seemed wrong but followed it unquestioningly, leading to the deaths of many of his cavalrymen.  Until that point in history, an army officer’s job was clear: wait for instructions, follow the instructions. 

At around the same time, a Prussian general Graf von Moltke decided that there was a better way, with what he called ‘auftragstaktik’ or ‘mission command’.  Under this new model, senior commanders emphasised their overall mission, then empowered and encouraged junior officers to do whatever it took to achieve that mission.  More emphasis on the outcome, less emphasis on the process.  Mission command’s flexible approach led to it being adopted not only by the world’s militaries, which still use it, but also by the modern corporate world – hence all the ‘mission statements’ we see on websites.  However, is that flexibility a feature or a bug?

Modern in-house lawyers often find themselves in organisations that are committed to mission command and are accordingly given a great deal of latitude and flexibility.  But what about the mission itself?  Often it is confusing, light on details or absent altogether.  In these circumstances, the lawyer chokes on their own freedom – they have plenty of freedom but little direction on how to use it.  It’s not surprising that in-house lawyers in this situation simply try and be ‘generally helpful’ and end up being swamped by clients only too happy to load them up.  In other words, flexible mission command without a clear mission is a cause of lawyer distress.

Perhaps the solution is to do what the military would call ‘Mission Analysis’.  In a mission command model, it is important for the junior commander to receive the mission and analyse what it means for them.  For the in-house lawyer, this means understanding ‘what would the CEO want me to do with my time?’ by either:

  • Proactively seeking out the mission from management; or, failing that,
  • Proactively setting out the mission (in the lawyer’s own view). 

Having a mission (especially one that is validated or confirmed by management – what the military informally calls ‘top cover’) liberates the lawyer by:

  • Clarifying what tasks are and are not on the list;
  • Clarifying the priority of tasks;
  • Identifying tasks that need to be on the list but had not previously been addressed.

Empowered by such a plan, the lawyer can improve their own life and contribute in a more meaningful way to the organisation.  If done well, positive changes include:

  • Not wasting time on low value/low risk/easy items;
  • Not missing higher value topics;
  • Spending less time drafting (e.g. by drafting the template to start at an acceptable middle ground position).

Standard Operating Procedures

SOPs are a darling of the military world because they:

  • Ensure that outcomes are consistent;
  • Improve efficiency;
  • Allow complicated and dangerous tasks to be broken into their component tasks, many of which can then be done by juniors;
  • Allow the hierarchy to insert appropriate controls; and
  • Minimise the ‘cognitive load’ (i.e. the amount of brainpower required at a given time).

SOPs are also common in the civilian world.  Consider aviation, an industry with a lot of possible inputs and outputs.  Instead of leaving it all to the discretion and ‘feel’ of pilots, airlines and manufacturers go to the trouble of compiling detailed SOP that set out the correct way of operating.  These SOP set out the procedures not just for routine operations like landing/refuelling, but also for more complicated situations like engine fires.

And the legal industry?  SOPs are notable in their absence from many legal workplaces due to a blind spot that many lawyers have.  How often do we lawyers think “ah yes, here is a unique task, with unique characteristics, requiring a unique solution” when really it is something that is repeatable and standardisable?  This is less of a problem in a law firm where work is billed by time, but it doesn’t work so well for in-house lawyers.

In-house lawyers would benefit from introducing SOP for the processes that lend themselves to standardisation for many reasons, but mainly to:

  • Improve the consistency of the legal team’s work. In larger teams, do different lawyers produce different work for the same task?
  • Save the re-doing of work.  How many times do we ‘re-teach’ ourselves a point of law?  If it is a common area it might be worthwhile drafting what the military would call an ‘aide memoire’ e.g. to recall how legislation works it might be useful to create a flowchart or a ‘FAQ’. 
  • Improve turn-around times.  Standardising work will speed it up.
  • Allow some steps of the process to be done by juniors.  If done properly, this will save time and money.
  • Allow management to participate in designing the SOP, so that they can ‘pre-set’ the ways of working.  This can be especially useful in SOPS that deal with an organisation’s plans for e.g. responding to a regulator.
  • Minimise the cognitive load.  Having part of the day’s work solved by a SOP will keep the lawyer’s mind fresh for other higher value work.

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