Thinking

Law firms, we are constantly reminded, are ‘people businesses’. People are, ultimately, defined by their actions (behaviours), and those behaviours are described by, and modelled by language.

Institutions and organisations use language to drive behaviours, often through totemic expressions which encapsulate complex policies or strategic goals.

We might think of politics (“Make America Great Again” (Donald Trump)), commerce (“Never Knowingly Undersold” (John Lewis)) or industry (“to delight our customers worldwide, all the time” (Audi)).

“Delighting customers worldwide, all the time”, for instance, is hugely ambitious, but will mandate certain behaviours among the people charged with making that happen, and creates a measurable framework around which the organisation (Audi) can judge how well it is doing. Consistent application of the philosophy and ironing out the wrinkles should gradually make the statement truer over time.

Other language may be less precise, often with no way of measuring beyond the feelings of those affected (“Make America Great Again”) but no less powerful, still able to cause people to behave in a way they feel aligns with the policy on show.

What should, in theory, doom a company (or politician…) is when they say one thing and do another. This doesn’t necessarily indicate duplicity; it may simply indicate the failure of the operating environment to provide the conditions necessary for success of the stated policy.

BigLaw – the dominant strain in international legal practice – speaks to both clients and the talent it is trying to attract in the language of grace, understanding and co-operation, but many of those working in BigLaw feel that the operating practices often fall short of the aspirations, and that ‘international competition’ – the stated reason for the continual ratcheting-up of revenue targets, target hours and fees – is only making things worse.

BigLaw’s reaction to this is sanguine, for the most part. Not unreasonably, it feels that the key aim of its strategy – to create the conditions for continuously-improving partnership profits – overrides any other considerations. Its tactical approach, a pincer movement of “if you can’t stand the heat…” and handsome salaries for its footsoldiers, is self-fulfilling, weeding out those who just can’t hack it and keeping only the ‘best’.

Note that I deliberately refer to BigLaw as a homogenous mass, simply because to the usually-inexpert client or uncertainly-informed recruit, law firms of a similar size and service offering can seem pretty interchangeable.

This is perhaps to be expected. Partners in BigLaw have a similar formation – similar educational path, similar social background, a uniformity in training, similar client experiences following operating procedures which are increasingly standardised within industries – and similar goals (money, professional standing etc).

Accompanying this uniformity is also an industry-standard language, not just limited to the kind of technical expressions that every industry has – utilisation, fee-earner, leverage ratio, billable hours etc – but also broad cultural signifiers which have resonance primarily because they stand in opposition to reputational negatives perceived as being common to lawyers in general.

Consider “commercial”, for instance. In law, this has a very particular – though vague – meaning, in direct opposition to the fussing, bookish lawyer obsessed with “black letter law” likely to take an “academic” approach, intimating solutions which lie outside the very thing which is being sold ie law. (“Look guv, I know it might look like an Austin Allegro, but it handles like a jet-ski…”)

Think about how many law firms claim to be “friendly” or “approachable” (because lawyers are often seen as aloof), “responsive” (because lawyers so often aren’t) or “client-focused” (because lawyers are perceived to be relentlessly self-regarding…). You get the idea.

While all law firms may claim to be different – and they are, texturally, at a level of detail which only becomes apparent through long exposure – what they also share, beyond their practically-identical values, is the same primary driver.

It is the most basic of human drives: the need to kill and eat in order to survive.

While society has evolved beyond wearing a bone through the nose and carrying an axe, law firms are still red in tooth and claw, as evidenced by the language which really matters, the internal language of law firms, which drives behaviours at odds with their friendly public face. The big daddy of this lingua advocatorum is the phrase: “eat what you kill”.

“Eat what you kill” is the language of the jungle, of cavemen, of primitive, hunter-killer tribes. It is far from the only example of primeval, macho language in common usage in the corridors of BigLaw (think of “big beasts”, “600lb gorillas”, “big swinging d***s”) but in law firm circles this totem is curiously acceptable.

While many firms would baulk at the description as applied to themselves, some actively embrace it, preferring what they see as the honesty – and risk – of an “eat what you kill” environment to the complex and often shady alternatives because, as the old saying goes, “if you’re going to stab me in the back, at least have the decency to do it to my face”.

As with every professional, from doctors to dentists, lawyers have charged this way for centuries. It really was “eat what you kill” (or “eat what you drill” for dentists, I suppose…) for lawyers for the longest time.

But as law firms were forced to grow beyond cabinet-size in the 1980s and 1990s, to keep pace with burgeoning international M&A and privatisation, the old hunter-killer model no longer seemed fit for purpose, and the operating language modified accordingly.

The concept of “leverage” defined these “pyramid-shaped” firms, and the talk was of sharing clients, of “institutionalising” clients, and of “cross-selling” (known simply as “selling” out in the real world, it being thought inconceivable in any corporate that an executive of the company would ever be doing anything else…).

The lockstep remuneration system beloved of English law firms was reasonably well-suited to supporting these new, modern firms. While the big beasts might still be sitting on top of those pyramids, it was important that their claws were sheathed, metaphorically at least.

Partnerships now styled themselves as “collegiate”, conjuring the image of donnish individuals, heads in books, smoking their pipes in some sunny, ivy-strewn quad at Cambridge or Harvard, a community of equals, fully-respectful of one another whether their chosen subject was engineering or ornithology.

English law firm partnerships, getting to grips with the novelty of “lateral hiring” began to define themselves in terms of “finders, minders and grinders”, a kind of ‘does-what-it-says-on-the-tin’ expression which spoke to the hierarchy of the pyramid firm, not just in terms of partners and associates but also within the partner ranks: the “finder” would find the work, the “minder” would look after it, in particular the client’s daily needs; and the “grinder” would actually do the grunt work.

This neat little expression also spoke to the move away from the multi-talented ‘homme d’affaires’ partner of old. Now there were different gradations of partner: finders were the hunters, the clan-chiefs; the minders were trusted to look after clients but lacked the skill to make the kill; the grinder was the asocial document-junkie, kept away from direct client contact unless absolutely necessary, but kept busy processing what the finders found and the minders apportioned.

But did anyone want to be seen in these terms? “Finder”, in particular, lacks any kind of visceral appeal, and the big lads needed something to reflect their, well, let’s call it “specialness”.

And so the newly MBA-obsessed law firms borrowed “rainmaker” from the corporate world; the tribal shaman endowed by the gods with the ability to make water fall from the sky to nourish the tribe and the herds they hunted.

While most reputable scientists now agree that dancing around with an animal skull on your head waving a stick adorned with beads and shells has less to do with the frequency or intensity of precipitation than might be imagined, here at least was a metaphor you could use in polite conversation and which implied no blood on the carpet.

Everyone wanted to be a rainmaker, or at least have the rewards rainmakers attracted. But this is law, remember, so once again, rainmaker became defined as much by its opposition to the true nature of law, as if the two were oil and water: “he may be a rainmaker, but he’s not a very good lawyer”, and its snide cousin “oh, he’s always out of the office…”

Young lawyers could forgive themselves for becoming a little confused at this point. They were constantly exhorted to learn to “feed themselves”, but were often kept away from clients, and would see many in the practice treating rainmakers with a combination of envy and disdain. Not unnaturally they might wonder whether it was possible to spend so much time on business development and be a great lawyer (the reason they’d probably become a lawyer in the first place) at the same time.

The problem, of course, is that the language of the modern, pyramid-shaped law firms – “collegiate”, “teamwork” and “cross-selling” – sits at odds with law firms’ primary driver.

Let’s not beat around the bush: if you have any kind of client-origination system for determining partner profits on an annualised basis, you are operating an “eat-what-you-kill” system.

Every time you exhort young lawyers to learn to “feed themselves” you are perpetuating the hunter-killer model of law. Every time you use the word “rainmaker”, you are referencing a magical power, one that every young lawyer needs to develop before they become too long-in-the-tooth, lest they face “de-equitisation”, the spectre at the partnership feast.

If you carve up your profits with regard to kills, if you reward people for making kills and creating territory relating to those kills, with subtle or overt systems for defending that territory, you are operating according to this primary driver. Dress it up in whatever lacy, euphemistic language you like, the drive, and the behaviours it inculcates, will overwhelm you eventually.

What should trouble you, if you cling to the notion of modern, pyramid BigLaw, delicate ecologies characterised by complex interdependencies, is that you are losing this war.

Long-gone is the practice of equal shares for all equity partners (I can only think of one large firm which still does it), which is surely the best way to square the circle if you truly believe in, rather than just playing lip-service to, the notion of differential contributions to success of a heterogeneous partnership.

The model which supported the pyramid model, which supported institutionalised clients and which rewarded seniority, loyalty and the pastoral benefits accrued as being part of the furniture – lockstep – has also gone out of the window for the most part.

It may not be just about actual “kills” these days, given how large institutional clients have become, but just as the best hunters and clan-chiefs became landed aristocracy when primitive hunter tribes evolved, so the Big Beasts have become the Lords of the Manor, possessing and carving up territory, to be assiduously farmed by their minions.

This is the market, now. Firms which become too technocratic, which obsess over leverage and process, which fail to sufficiently reward the Big Beasts will see said Beasts head for richer pickings, taking their lands with them. Some of the English Magic Circle have already had to give in to this, choosing to break their own equity structures in order to attract the magical individuals deemed necessary to their survival. As with the City mid-tier, they too must merge or become extinct.

US law firms, in contrast to their English brethren, have always understood how the world really works, and have remained true to their primary driver. Every lawyer coming out of the JD system knows from the off that they have to win clients to become partner and keep them if they want to remain partner.

But is this anything other than human nature expressing itself? In a world which seems to be devolving to tribes, where the “neoliberal consensus” of global interconnectedness may be over, is this not the rational response?

Rather as most of us are aware that when the zombie apocalypse arrives, the ability to run, forage for canned goods and despatch foes, undead or alive, will be more important than the ability to complete The Times crossword in record time or cultivate prize-winning dahlias, those BigLaw partners able to survive know that what matters when it comes down to it is your ability to make the kills, and to be the one who controls who gets the best cuts of meat.

So maybe, reluctantly, it is time for a return to the language of the jungle, red in tooth, claw and blistering honesty, acknowledging that we are all, at heart, predators.