The Coming Debate Over Defining "Quality"

qual-i-ty: L qualitas 1a: peculiar and essential character [...] 2a: degree of excellence, caliber ... 2b: degree of conformance to a standard (as of product or workmanship)... 4a: special or distinguishing attribute, characteristic.

--Webster's Third New International Dictionary, ©1909-1971

What is "quality" in legal services and professional representation of a client?

Had you asked me that a few years ago, I would have cocked my head and looked at you sideways. We all know what it means; we went to name-brand law schools which trained us all to be future Supreme Court clerks, and we learned at the knee of Professor Kingsley and Christopher Columbus Langdell.

But let me pose a thought experiment which is, for better or worse, less and less a "thought" and less and less an "experiment," and more and more a reality on the ground.

Does this sound familiar?

By now, we've all been educated to a fare-thee-well on the coming brave new world of alternative fees, Value Challenges, and the "worthlessness" of junior associates. And we've attended the conferences and seminars sponsored by obliging vendors standing ready, at our service, to help us cope with this new reality.

McKinsey, which advises that the purchasing function should have a key seat at the table in strategic affairs discussions-and not a peripheral or subservient role-divides quality into three segments:

• Good enough: Sufficient for almost all purposes almost all the time.
• Excellent: Occasionally needed when germane to reputation, marketplace perception, or positioning.
• Superb: Very rarely required, perhaps only when genuine organizational threats are in play.

That's the view from corporate America.

We would, of course, invert this listing:

• Superb: Why you come to our firm, what we do, and who I am. (Don't for a second underestimate that third element; it's why you get up in the morning and how you hold your head high.)
• Excellent: When we try to execute a representation with some degree of sensitivity to costs, based on a longstanding relationship.
• Good enough: Who do you think we are? You've come to the wrong place.

What happens when these two worldviews collide?

At first, we may go through the five stages of grief, per Kubler-Ross:

• denial
• anger
• bargaining
• depression
• acceptance

Let's pretend we get all the way to acceptance, however. After all, the client is always right. (Right?)

As faithful readers know, I majored in economics in college and went through the courses in the MBA program at NYU's Stern School of Business, so I have a reasonable degree of sympathy to the clients' view of "quality." I might add that, as a Scot, I profoundly appreciate the parsimonious dimension to their attitude.

Here's my worry:

• You and your firm agree to a client's request/demand that a certain matter is only worth "good enough."
• You give it good enough-plus 10%, let's say, just because you can't help yourself.
• Case closed.
• Tick....tick....tick
• Sometime later, things go seriously south with the matter formerly deemed closed.

Is good enough good enough any more?

And who's to blame-your firm or the client-for the fact that merely sufficient legal advice has come back to bite?

Actually, you might not want to let your malpractice carrier think about this too long.

What, then, is to be done?

We all know there are no guarantees in life, but I also believe that consenting adults can reach free market solutions-premised on full disclosure-that help people anticipate what the rewards are if things go right and where the responsibilities lie if things go wrong.

So, for starters:

• Be ready for, and open to, "good enough" engagements.
• But think about them especially hard--ironically, harder than you might think about bet-the-ranch engagements.
• Have extended, open-ended, probing conversations with your client opening their eyes to the full implications of "good enough."

And finally, don't underestimate your own firm's market power. That's what clients are trying to start to exercise. They're not the only party at the table.

Update:  Steven Levy, a loyal reader, writes:

I think this is a question that people are just starting to address.

Any business decision contains risk, and good decision-makers build risk premiums into the overall cost analysis. Why is it not reasonable to sign a work agreement in the legal arena recognizing and accepting risk? We do it everywhere else. For example, my home insurance excludes earthquake damage. (I live in an earthquake zone, and so I choose to purchase separate earthquake coverage.) Both the insurer and I recognize the limits of the coverage.

Agreements to engage legal services are negotiations between two highly competent and knowledgeable parties. Why can't they include a definition of 'good enough' that makes clear the quid pro quo of less money/less depth?

You can read more of Steven's thoughts, including his elaboration on the earthquake/risk analogy, at his "Lexician" site.