Most of what lawyers do is folklore

Ernie Svenson · email · 2026-05-19 source ↗ Reader 🖥️

Most of what lawyers do — billable hours in six-minute increments, drafting from scratch, defaulting to phone calls, CLE compliance — is folklore: inherited practice that persists because nobody asks why, and the only way to find out which parts are folklore and which are real is to ask 'why' three times until either a real answer or its absence surfaces.

practical · argumentative — A short, opinionated Substack diagnosis-plus-call-to-action. Svenson borrows Steve Jobs's 'folklore' concept (from the Apple standard-cost story) and applies it to legal practice. Argumentative core — most lawyer practices persist without examined justification — wrapped in light expository inventory (four examples) and a prescriptive close (ask 'why' three times). The piece is shaped to provoke recognition, not to defend the diagnosis against pushback.

Structure

Part	Role
The Jobs / Apple standard-cost anecdote	Introduces 'folklore' as a named concept and establishes its diagnostic pattern: a practice everyone follows, no one can justify, and whose real cause turns out to be inadequate underlying systems
Lead example: billable hours in six-minute increments	First and most load-bearing application — the surface justifications ('that's how lawyers bill', 'clients expect it') hide a structural cause (we can't price outcomes, so we price inputs in the smallest unit a paper-era lawyer could track)
Three more examples: drafting from scratch, defaulting to calls, CLE compliance	Quick inventory establishing that folklore is widespread, not a single anomaly; each carries its own micro-diagnosis (laziness about systems, avoidance of clarity, regulatory rent extraction)
Prescription: ask 'why' three times	Converts the diagnosis into a low-cost personal practice; identifies social cost (looking naive) as the reason the question is suppressed

Key terms

folklore Legacy & Organizational Forgetting
Practices that persist on the strength of 'that's how it's done' rather than examined justification — typically traceable, on inspection, to outdated tooling, inadequate information systems, or institutional inertia rather than to genuine functional necessity. The term is diagnostic, not merely pejorative: it labels a category of practice that survives in the absence of, not because of, a defensible 'why'.
the billable hour (in six-minute increments)
Svenson's prototypical example of folklore — treated not as a pricing model with its own defenders but as a fossil: priced in inputs because outcomes can't be priced, measured in six-minute units because that was the smallest unit a paper-era lawyer could track. Functions as the test case for the whole frame.
CLE compliance
Continuing Legal Education hours-attended requirements — framed by Svenson as ritual credentialing ('the DMV — show up, prove you're alive, get your ticket punched') sustained by regulator rent extraction rather than any plausible learning theory.
ask 'why' three times
The personal diagnostic protocol Svenson prescribes: pick a single firm practice, ask why three times in sequence, and either find a real reason or expose its absence. A deliberate echo of Toyota / lean 'five whys' compressed into something a lawyer might actually do.
the real reason
The actual cause of a practice — typically a systems gap, an aversion to discomfort, or a rent-extraction interest — as distinct from the surface rationalization ('that's how it's done', 'clients expect it', 'every matter is unique'). The piece's recurring move is the swap from stated reason to real reason.

Propositions

explicitMost legal practices persist without examined justification; lawyers cannot say why they do what they do beyond 'that's how it's done.'conf: high
explicitThe billable hour in six-minute increments persists because lawyers cannot price outcomes — they price inputs, and they measure inputs in the smallest unit a paper-era lawyer could reliably track.conf: high
explicitRoughly 80% of legal drafting is reused boilerplate; the 'every matter is unique' rationalization is false to that degree and hides a failure to build systems for capture and reuse.conf: high
explicitDefaulting to phone calls is often inferior to writing because writing forces clarity and leaves a record; the call reflex is driven by avoidance of the cognitive work writing demands.conf: high
explicitCLE in its current form (one-hour webinars without quizzes, repetition, or retention checks) does not constitute real continuing education and persists because bar associations profit from it.conf: high
explicitThe reason individual lawyers don't ask 'why' is social — asking the question makes the asker look naive or annoying, so they go along.conf: high
explicitAsking 'why' three times about any given firm practice will reliably either surface a real justification or expose its absence as folklore.conf: high
explicitFolklore practices, once identified, are 'not hard to fix' — the bottleneck is willingness to question, not the difficulty of the alternative.conf: medium
implicitFolklore in any institution is typically traceable to an underlying systems failure (information systems, capture systems, learning systems) rather than to genuine functional necessity.conf: high
implicitSurface rationalizations ('that's how it's done', 'clients expect it', 'every matter is unique') are systematically unreliable as explanations of why practices persist.conf: high
explicitBetter tools genuinely exist now (in 2026) for the work folklore was a workaround for — scoping work, pricing outcomes, tracking value, reusing clauses, verifying learning.conf: medium
implicitWhere folklore benefits an identifiable party (e.g., bar associations profit from CLE), that party will have no incentive to reform it; reform pressure must therefore come from outside the beneficiary.conf: medium
implicitdevelopedThe lawyer's professional value lies in the substantive part of the work, not in the folklore wrapper; the wrapper is replaceable.conf: high
extends ←You won’t get replaced. You’ll get skipped. · p2 — The folklore piece claims a lawyer's professional value lies in the substantive work, not the 'folklore wrapper,' which is replaceable; this document supplies the structural account (Abbott's three arenas) for why that wrapper — the daily-work arena specifically — is exactly the jurisdiction most exposed to erosion first.

Arguments

Most of what lawyers do is folklore, and the way to find out which parts is to ask 'why' three times about each firm practice. strength: medium

Explicit premises:

Jobs identified a recurring institutional pattern — practices that everyone follows but no one can justify — and named it folklore
The same pattern is visible in law across billing (six-minute increments), work product (drafting from scratch), communication (defaulting to calls), and credentialing (CLE)
In each case the surface rationalization ('that's how it's done', 'clients expect it', 'every matter is unique') hides a deeper real reason that is a systems gap or rent-extraction interest, not a functional necessity
The diagnostic test for folklore is whether iterated 'why' questioning surfaces a real reason or exposes its absence

Implicit premises:

Practices without articulable justifications are bad and worth replacing — the absence of a defensible 'why' is itself sufficient grounds for reform (the explicit anti-Chesterton's-fence stance)
The 'real reason' for a practice is recoverable through ordinary questioning — it is not genuinely lost or tacit
Lawyers' clients want substance and would tolerate or prefer the de-folkloric version of the work; the folklore is not what they are paying for
AI and modern information systems are viable substitutes for the activities currently filled by folklore (boilerplate drafting, time tracking, learning verification), not merely diagnostic tools
The lawyer's professional value survives stripping the folklore — the practices are decorative wrapper, not load-bearing structure

Inferences:

Individual lawyers can act on the diagnosis unilaterally by adopting the three-whys protocol on a single practice at a time
Reform of practices with entrenched beneficiaries (CLE, billable hours at large firms) will require pressure from outside the beneficiary class
Firms that strip folklore early will have a competitive advantage in 2026 as better tools become available for the work folklore was a workaround for

Institutional folklore generally traces to underlying systems failures (information, capture, learning) rather than to functional necessity. strength: medium

Explicit premises:

Apple's standard-cost folklore traced to inadequate information systems
Six-minute billing increments trace to inadequate paper-era tracking tools
Drafting-from-scratch traces to never having built a clause-reuse system
CLE-as-attendance traces to the absence of a retention-verification system

Implicit premises:

Once systems improve to the point where the original workaround is unnecessary, the practice should change — but it doesn't, because no one is paying attention to whether the original constraint still holds
The default direction of institutional drift is toward fossilization, not toward continuous re-examination

Inferences:

Looking for the missing system underneath a practice is a productive way to identify folklore
Investments in better systems (pricing, capture, learning) will dissolve the corresponding folklore faster than direct attacks on the practice

Narratives

Steve Jobs at Apple, asking the accountants why they use 'standard cost' (guess what something costs to make, then adjust at quarter-end with a 'variance'). After six months of asking 'why', Jobs surfaces the real answer: the accountants didn't actually know what things cost because Apple's information systems weren't good enough, so they guessed and corrected later. Nobody had said it that way; they had just said 'that's how it's done.'
→ Supplies the canonical pattern the piece will pattern-match onto law. Three load-bearing details: (1) the practice looks technical and defensible from outside, (2) the real reason is an upstream systems failure, (3) the gap between the stated reason and the real reason is invisible until someone refuses to stop asking 'why'. Also lends borrowed-authority weight — Jobs is the patron saint of 'ask the dumb question'.
The DMV / CLE webinar parallel — sitting through a one-hour webinar to satisfy CLE compliance is structurally the same as showing up at the DMV: 'show up, prove you're alive, get your ticket punched.'
→ Compresses the diagnosis of CLE into a single image; the DMV is universally recognized as ritual-without-substance, so the analogy does most of the argumentative work in one line. Also names the actor who benefits (the issuer of the ticket) without having to belabor the point.

Questions addressed

✅ What is folklore (in Svenson's operational sense)?
Practices that persist on 'that's how it's done' rather than examined justification — typically traceable, on inspection, to outdated tooling or inadequate systems rather than to functional necessity.
✅ Where does folklore show up in law?
Four named domains: billing (six-minute increments), work product (drafting from scratch), communication (defaulting to calls), and credentialing (CLE). Svenson asserts it is 'everywhere' once you start looking.
✅ Why doesn't anyone fix it?
Because asking 'why' makes you look naive or annoying, so people go along. In some cases (CLE) there is also an incumbent beneficiary with no incentive to reform.
✅ What should an individual lawyer do?
Pick one thing the firm does, ask 'why' three times, and see if a real answer surfaces. If not, you've found folklore.
⭕ What if some of the 'folklore' has non-obvious purpose (Chesterton's fence)?
Not engaged. Svenson assumes the absence of an articulable 'why' is sufficient evidence that the practice is folklore worth dismantling; he does not entertain the possibility that the practice serves a tacit function (trust signaling, ambiguity as client protection, ritual as professional differentiation) that wouldn't survive three rounds of naive questioning even if it is real.
⭕ How does folklore differ across legal subdomains (transactional vs litigation, large-firm vs solo, US common-law vs other systems)?
Unaddressed. The piece treats 'lawyers' as a uniform class. The billable-hour-six-minute-increment claim is much more characteristic of US large-firm practice than of solo practitioners, in-house counsel, public-sector lawyers, or civil-law jurisdictions.
⭕ What if the folklore is itself part of what clients are paying for?
Unaddressed. The piece presumes clients want substance and the folklore is a wrapper they would prefer stripped — but lawyers' economic value may be partly that they perform credentialed rituals (the six-minute increment as a precision-performance, the CLE certificate as a competence signal). The professional-status defense of folklore is not engaged.
⭕ Are the better 2026 tools actually viable substitutes, or just plausible-looking alternatives?
Asserted but not defended. Svenson claims 'better tools exist for scoping work, pricing outcomes, and tracking value' without naming them or showing they work at scale in legal practice. The viability claim is doing a lot of work in the argument.

Gaps

incompleteChesterton's-fence problem. Svenson treats the absence of an articulable 'why' as sufficient evidence that a practice is folklore worth dismantling. But some persistent practices serve tacit functions that practitioners cannot articulate on demand and that the three-whys protocol would not surface — ritual as trust-signaling between lawyer and client, strategic ambiguity as client protection in adversarial contexts, credentialed performances of competence that the market actually pays for. The piece's frame cannot distinguish between 'folklore that survives because nobody asks' and 'folklore that survives because it does load-bearing work no one can name.' For an engineering reader this matters enormously: cargo-cult engineering practices and Conway's-law-shaped practices look identical from outside but should be treated very differently.
Read next: Chesterton on the fence; Christopher Alexander's pattern languages on practices whose function is tacit; Donald Schön on tacit professional knowledge; James C. Scott's Seeing Like a State (legibility critique — high-modernist reformers tend to discount illegible local knowledge as superstition)
incompleteStatus-and-credentialism defense of folklore. Svenson presumes the folklore is a wrapper on substantive work; the professional-status reading is that lawyers' (and other credentialed professionals') economic value is partly the performance of folklore itself — the six-minute increment as precision-performance, the CLE certificate as competence signal, the from-scratch drafting as bespoke craftsmanship. If clients are partly paying for the folklore, stripping it is not pure efficiency gain.
Read next: Freddie deBoer on credentialism; Susskind & Susskind on the future of the professions (which engages exactly this tension — what professional value survives automation of the folklore); Andrew Abbott on the system of professions and jurisdiction
closed byYou won’t get replaced. You’ll get skipped. — That gap's reading_direction explicitly named 'Andrew Abbott on the system of professions and jurisdiction' as the needed reading; this document is exactly that — it applies Abbott's framework and reframes the status-and-credentialism question as one of contested legitimacy across three arenas rather than a fixed fact about what clients are 'really' paying for. It doesn't fully resolve whether folklore-as-performance is itself valuable, but it directly engages the named reading direction with the actual framework.
incompleteGeneralization across the legal class. 'Lawyers' is treated as uniform but the four examples are most characteristic of US large-firm transactional practice. The six-minute billing increment is largely a Biglaw artifact; in-house counsel don't bill by the hour at all; public defenders don't draft contracts; civil-law jurisdictions structure both billing and CLE quite differently. The Norwegian, German, or French reader would recognize some folklore but not these specific instances. The piece would be sharper if it named which segments of legal practice the diagnosis fits and which it doesn't.
Read next: Comparative legal-systems literature on professional regulation; in-house counsel vs outside counsel economics; segmentation of legal services markets (Henderson, Susskind)
incompleteViability of the 2026 alternatives is asserted rather than shown. 'Better tools exist for scoping work, pricing outcomes, and tracking value' is the structural pivot from diagnosis to prescription — but no specific tool, firm, or evidence is offered. Outcome pricing has been advocated in legal practice for decades and adoption remains marginal even where the tools are available; the gap between 'tool exists' and 'practice changes' is itself the interesting question the piece skips over.
Read next: Alternative-fee-arrangement literature in legal practice management; diffusion-of-innovation theory (Rogers); 'why don't best practices spread?' research in operations and healthcare
incompleteThe three-whys protocol is offered as a sufficient diagnostic test, but iterated 'why' questioning is famously unreliable as a root-cause method when the real cause is multi-causal, political, or tacit. It tends to converge on whatever cause the asker is already disposed to find. The piece does not engage with the limits of the technique it prescribes.
Read next: Critiques of the Toyota '5 whys' in lean literature; Sidney Dekker on the field guide to understanding human error (against single-root-cause framings); Charles Perrow on normal accidents (multi-cause systemic failure)