SLAW Article On Legal Publishing ““There’s No Success Like Failure””

We haven’t seen an article by Robert McKay for a while so great to see him back on the hustings, so to speak.

“There’s No Success Like Failure”

Posted: 13 Mar 2020

To a significant extent in legal and professional publishing, as in other areas of publishing and indeed business and real life, commercial and financial failure plays a critical part in charting its paths. Probably, it is its failed projects and ventures which determine its future rather than its overall historical success, where such has been achieved over time. Here, maybe more than in some other fields, just like the inevitable conclusion of all political careers, the expectation of failure is embedded at its very core, though perhaps often needlessly. It is so embedded that in so many scenarios, notably in business and politics, by way of, for example, the creation of sinecures and the payment of bonuses, it is rewarded rather than admonished. Yet, one lives in hope that failure necessitates and compels new strategies and tactics for further experimentation.

In conventional publishing, there remains what, for some, might be an embarrassing tendency to do little or no meaningful research into what is likely to be a future success and the gambler’s principle of “suck it and see” often prevails. Another frequently witnessed alternative to effective research is to try to understand the needs of one’s core market by reference to the wrong version, such as, from Europe, seeing North American trends and patterns and erroneously assuming that they apply equally at home. It is as if the basic commercial rules of business do not apply, though, admittedly, there is a handful of cases in which the cost of failure is less than that of appropriate pre-launch research. Hunches, personal bias, favours offered and returned, and plain ignorance, lack of experience or expertise are seen more often than measurable and deep pre-publication analysis and ongoing development activities. Sometimes, a book or periodical is published because someone, having picked up the idea at a conference, party, lunch or suchlike, persuades his or her colleagues that it is a splendid project, Benjamin Franklin’s “fail to plan; plan to fail” being acceptable in such cases. Then, it does indeed fail spectacularly, despite best efforts to resuscitate its ebbing body, prolonging the agony and increasing the cost of the failure. Thus, the business moves on, grateful for its minority of profitable products and services that function to indulge the gambling, possibly having learned few lessons and repeating the process again. In general, the adage of “fail quickly” combined with admission, acceptance, analysis and a plan to keep going, is one that should be always recalled, though the idea of forgiving and forgetting can be delusional. As to the emerging innovative, so-called “disruptor” replacement businesses, we simply need to observe, as many slip quietly into failure and oblivion, while the minority which survive and are subsequently acquired are highlighted in order to disguise harsh realities. Moreover, frequent failure is not the prerogative of the small, the inefficient or the inexperienced, as the major market participants demonstrate with great frequency.

It is common, especially in business, where there is abject and superstitious fear of any hint of negativity, for people to fake unbridled optimism, or rather not to admit to even the possibility of failure. Hence, Bob Dylan’s enigmatic “there’s no success like failure” (from Love Minus Zero/No Limit) has a good ring. It plays to the idea that we never fail but only learn, progress, find opportunities, etc., Albert Einstein’s comforting words, “in the middle of difficulty lies opportunity” probably working optimally if you happen to be Einstein. The completion of Dylan’s line “and that failure’s no success at all”, enhances the dichotomy and strikes me as somewhat the more truthful component.

For those who fear using the “F” word, rather as many need to use “pass away”, “pass” and “pass on”, in place of the more accurate and honest “die” and “death”, denial of reality is essential. Therefore, failure is good. It forgives the bad decision-making, lack of experience and expertise, inadequate preparation and research and, most often, lack of good fortune, to allow the slate to be wiped clean and, so long as the invoices are being paid by someone else, never to speak of it again. In reality, often, failure can be devastating, relentless and unforgiving, with no good coming out of it and the best lesson learnt being that, in the event of survival at all, never to take such risks again. For some, by way of example, the outcomes of the Brexit experience, the 2016 USA Presidential election and the 2019 UK election, represent failures from which little that is positive is said to have emerged. Although the language of optimism is used in such crowd-rallying forms as “today the fightback begins!”, deep down, with each failure of such kinds, we die (or maybe pass) a little.

A law publishing mentor of mine, pompous and with a great sense of entitlement as he had, long ago expressed the view, in extremely arrogant terms in the view of those who were younger, less experienced and less fortunate, that to be properly trained in legal publishing, one had to serve an apprenticeship of at least fifteen years. The first five were to learn what to do, the second five were inevitably to get things mostly wrong and the third five were to endeavour to put things right. His haughty style and demeanour were off-putting and encouraged disbelief, especially for those who saw fifteen years as an eternity, but perhaps there was some insight in his reasoning. Furthermore, using the now, one hopes, long-since obsolete “three score and ten” measure, the learning period would take pretty much until middle-age before someone might be trusted not to “crash the ambulance”. There is little doubt, by my calculation, that the law publishing tradition of reliance on the importance of backlist management and renewal by way of subsequent editions and the near certain “80:20 rule” outcomes within the business, is the result of and means by which to cope with almost relentless failure when it comes to innovation and experimentation. By way of an indirect but parallel example, I was struck recently while browsing the pages of a motoring magazine from twenty years ago, by just how many of the vehicles being hailed as images of the future, of ideas as to what would be our future needs and desires, were utterly wrong, as time proved, and how many models and indeed brands subsequently disappeared. The stench of failure oozed from every line and page. Law publishing is not dissimilar.

In her excellent Slaw article entitled Failure and What Comes Next, Sarah Sutherland tackles the question of failure, which we all experience in one form or another. Rather than hide from it or deny that it exists, her advice is to manage the expectation of it as constructively as possible. One of the areas in which failure is frequently encountered and which she addresses, is in working with publishers to secure publishing deals. It is illuminating to observe the experience of failure from the aspiring author side rather than from that of the publisher, with the failed author (expressed only in commercial and financial terms) being the victim of the failed publisher, whose predicament may have been caused in part by having too many failed authors, chicken and egg-like, concluding only that it is everywhere and mostly inescapable. The greatest and frequently witnessed tragedy is, of course, of the brilliantly conceived and executed project or publication, in the latter case written with the greatest skill and expertise, which nevertheless fails commercially.

It would be incorrect to suggest that failure cannot be turned into success, having extracted such pedagogical benefits as the experience offers, though it must surely be in only a tiny minority of cases. Nor would any creative and intelligent person ever advocate taking no risks. Yet, in my opinion, despite all the euphemisms, confidence-building and untruthful, uplifting, aspirational language on the topic of failure, there is more harm than good to be derived from it. In law publishing and in other fields in which it is commonly encountered and from which I, with a philosophical attitude, bear many self-inflicted scars, I would greatly prefer to observe efforts and effective strategies to avoid failure rather than the post-facto pretence that, well, depending on how we look at it, it’s all good and we’re delighted by it. Law publishers, like many others, sometimes fail to say what they really mean.