Just like lawsuits, organizations — including both law schools and law firms — need a theory of the case, too.
“So what’s the theory of the case?”
Such was the question put to me by a senior partner early in my articling year. I did my best to look sage when I blurted out something in response, but I’m sure that my face betrayed my mixture of befuddlement and terror. For the fact was that not only did I not have a theory of the case — I didn’t even fully understand what the question meant.
This was my first and only substantive encounter with this partner over the course of the year. He wrote me off then and there, and the only thing he did afterwards was glare at me whenever he saw me in the corridor. Indeed, I don’t think he ever said another word to me in my six years there. Fortunately for my tenure at the firm, he did not seem to have been involved in the hire-back decisions.
In any event, I was recently reminded of my youthful humiliation when a friend who was applying for a deanship (in another country, just to avoid any nosy questions) called to ask my advice on framing his application. Without using those exact words, I realized that when I was quizzing him about what his plans might be were he to get the job — I was asking for his theory of the case.
The point I was trying to make is that, just like lawsuits, organizations — including both law schools and law firms — need a theory of the case, too. Put another way, they need an institutional narrative. That’s what makes them into purposeful organizations, rather than mere conglomerations. There is an old joke that modern universities are nothing but a collection of independent contractors bound together only by common complaints about parking. That remains a good line; I’ve used it occasionally myself to get a laugh when spirits were flagging at a faculty meeting. But it could not be more wrong-headed when actually describing how healthy institutions should operate.
An institutional narrative is not the same thing as a brand, but it is an essential element of one. The narrative underpins and nourishes the brand. One might think of it as an organizational elevator pitch. As I wrote in a piece published in the Financial Post at the time of Heenan Blaikie’s implosion, the quality that makes a firm durable is loyalty, for loyalty begets culture, and culture in turn begets durability. From an internal perspective, one of the chief benefits of an institutional narrative, a good one at any rate, is that it engenders loyalty. It is, in other words, the thing that gets the ball rolling.
All successful organizations have institutional narratives. They may be unstated, but they are nonetheless well-understood. Oxford and Harvard universities are among the most substantively diverse entities on earth. But they’ve each got a corporate story that is able to link together the law schools with, say, the departments of theoretical physics or medieval history. That doesn’t mean that all the various units do or teach the same things. Of course they don’t. But there is a narrative about the corporate entity that makes all the parts fit together into a comprehensible whole.
The same holds true for law firms. My old firm had a magnificent institutional narrative. We had been founded by a Father of Confederation. We had represented the White Star Line in both the Titanic and Halifax Explosion matters. We acted for chartered banks and most of the major insurers. All of us had spent our whole careers at our firm. We had all gone to the same law school. And our lawyers only practiced law, we were not engaged in business. This latter point was especially important in our narrative, for it distinguished us from our principal rival.
To use a slightly old-fashioned expression, our institutional narrative was that we were as solid as the Rock of Gibraltar. If you’d sit in our waiting room thirty or forty years ago, you’d see leading QCs and politicians and captains of industry parade by from morning til might. For a young kid from New Brunswick, it was a pretty exciting, if scary, place in which to learn to be a lawyer.
But here was the rub: our institutional narrative was conceived in the 19th century and came of age in the 20th. It was reflective of a world where it was taken for granted that solidity and steadiness were virtues. It was a world where being likened to the Rock of Gibraltar was not only commonly used as a metaphor, but it was a metaphor for something good. It was also a world where Canada’s legal profession was still almost exclusively provincial - in both senses of the word. It was, in other words, a world that no longer exists. As a result, my old firm, like many others across the country, now finds it a challenge to define itself in a way that really makes it distinctive. If you’re in any doubt of that, have a look at law firm tag lines, and ask yourself whether they aren’t mostly interchangeable.
We who work in law schools have no reason to feel smug about this. For we’re in exactly the same boat. We are not driven by the profit motive like law firms are. But we depend upon the inclination of external actors - students, governments and donors - to provide us funding. All three have choices of how and where to spend their money, and without an institutional narrative, it’s difficult to convince any one of them, let alone all three, to spend it on us.
The challenge facing much of Canada’s legal profession — in both its practical and academic guises — is how to modify and adapt institutional narratives which, like that of my old firm, grew and developed organically in one century, to meet the demands of another. To accomplish this requires a substantive degree of commitment from both up and down and across the organization, as well as the institutional stomach to persevere in the face of bumps in the road — for the bumps will be many.
Unfortunately, both law firms and law schools are structurally ill-equipped for this. Both are built on elements (indeed, many of us would argue, integral elements) of a high degree of autonomy and professional diversity among the participants - equity partners in the case of law firms, and tenured professors in the case of law schools. Moreover, lawyers are bred to be both critical and risk averse.
A year and a half ago, we at Calgary embarked on the process of re-doing our strategic plan. At the beginning of the process, our working group spent an afternoon with Ken Steele, the founder of Eduvation, a higher education consulting firm (and a first-rate one). It was one of the most professionally enervating days of my life. For what Ken helped us realize was that, rather than writing a strategic plan, we were helping draft a new chapter in our institutional narrative.
Ken explained that good strategic plans — and consequently powerful institutional narratives — require what he called the three Cs. They need to be compelling, they need to be credible, and they need to convey a competitive advantage. Once we fully hoisted that message in (and thanks to the extraordinary leadership of our chair, Michael Ilg), the strategic plan almost flew onto the pages!
The self-destruction of Heenan Blaikie serves as a real time parable about the enduring importance of the core value of loyalty to one’s colleagues. Right to the end, they remained profitable. Their managing partner was someone who cared profoundly about his firm, and who thought deeply about the challenges facing him and his partners. Every lawyer I knew there stood in the first rank. They were recruiting very good law students. But what they lacked was any kind of institutional narrative that engendered a sense of collective cohesiveness. So what they became was a kind of version of law firm Survivor in inverse — one where people were racing to get off the island.
By the end - once the metaphorical run on the bank had begun - nothing could have saved Heenan Blaikie. But had they accompanied their growth with an evolution in their institutional narrative from a firm cast in Roy Heenan’s image to something else - something that was credible and compelling — I’d lay money on the fact that they’d still be a landmark in the Canadian scene even today.
This is my last column for the year, so I wanted to close by thanking my readers, and my colleagues and students, both present and past, for their continuing support. Working with and among you remains a source of continuing happiness for me. Gratias tibi propter misericordiam volo.
Happy Holidays to all!
