Most regulatory developments do not yield anything worth writing.
That is not a complaint about the quality of regulation. It is a property of the relationship between what regulators do and what law firms can be instructed on, and it is the reason firm publication programmes so often produce a great deal of output and very little consequence.
The useful question for anyone running such a programme is not what to write about. It is what to discard, and how early. Below are the ways a promising development turns out not to be one. None of them is obvious at the point where the development is first read, which is why they are expensive.
The mandate sits somewhere else
The most common failure. A change occurs, it plainly creates work, and the work is not available to the firm reading about it.
This can be jurisdictional, where the instruction goes to counsel qualified somewhere the firm is not. It can be structural, where the party who has to act is three links up a chain and has its own advisers. Or it can be a matter of practice area, where the development is real but belongs to a transactional practice and the firm is a disputes practice.
A thesis can survive every test of accuracy and interest and still fail here, and it usually fails late, because the analysis is finished before anyone asks who is actually going to be instructed.
The obvious product does not survive contact with the market
A development suggests a service. The service is coherent, a client would benefit from it, and nobody will buy it because somebody else already sells it more cheaply, because the client does it in-house, or because the commercial logic runs the other way.
The last of those is the hardest to see in advance. A client with a legal right worth exercising may have overwhelming commercial reasons not to exercise it: a supplier it cannot replace, a regulator it cannot afford to antagonise, a counterparty it will be trading with for a decade. The advice is correct and unusable.
The literature is already there
A development that is genuinely important attracts commentary within days, and by the time a firm has formed a view, forty firms have published the explainer.
There is often still something to say, but it is not the thing that first looked interesting. It is a second-order question that the explainers passed over, and finding it requires reading the development against something else rather than reading it on its own. Most of the time that second-order question does not exist, and the honest conclusion is that the subject is taken.
The underlying fact is wrong
Secondary reporting compresses, and compression introduces error. A summary reverses which party did what. A figure is repeated from a source that misread it. A case is described by its headline rather than its holding, and the holding is narrower.
This one is fatal and it is only avoided by going to the primary material, which is slow and frequently confirms what the summary said. Checks, whether right or wrong, are worth running anyway, because a programme that skips them will eventually publish something wrong under the firm’s name.
The buyer cannot act on it
A thesis can be correct, uncontested and directed at exactly the right audience, and still produce nothing, because the audience is not in a position to do anything about it.
Sometimes the reader has no budget for the category. Sometimes the decision belongs to someone above them who will not be reading. Sometimes the change affects them but the response is someone else’s to make. The analysis is sound and the reader agrees with it. Yet, nothing follows.
There is no trigger
The subtlest one. A development describes a condition rather than an event: a market has shifted, a risk has grown, a practice has become common. All true, and there is no date attached, so there is no moment at which an actionable arises.
Work without a trigger does not get instructed. It gets acknowledged.
What this means for a publication schedule
The consequence of all this is uncomfortable for anyone committed to publishing on a fixed cadence.
A law firm that has undertaken to produce something every fortnight will, on the fortnights when nothing survived, publish whatever came closest. That is not the same as publishing what was worth publishing, and the difference is invisible to the firm and fairly visible to everyone else. Over a year it produces a body of work that is regular, competent and largely inconsequential..
The alternative is not publishing less. It is examining more, and accepting that the ratio between what is examined and what survives is not a flattering one. A development that clears all six of the above is uncommon, and the ones that clear them are not identifiable in advance. The only way to find them is to run the checks on a great many that will not.
That throughput problem, which is not really about a lack of discipline, is the reason the two law firms with identical publication schedules can produce entirely different results from them.
Lawfinity Solutions advises international law firms on cross-border legal market positioning. If the India corridor is a live question for your firm, we would be interested in a conversation. Lawfinity works with one firm per jurisdiction. Engagements begin with a single conversation about your firm’s current position and where the corridor question is live for you. Write to Prachi Shrivastava
