Articles Posted in Knowledge Mgt.

Tacit knowledge “includes the unspoken knowledge that people draw from within themselves: observations, ingrained habits, inspirations, hunches, and other forms of awareness that are typically not written down or codified, but that live in people’s minds and bodies, and give any organization much of its distinctive edge over competitors.” Law departments are flooded with tacit knowledge, but almost bone dry on codified knowledge.

Having written about tacit knowledge without having never defined the term, I think this definition from strategy + bus., Iss. 53, Winter 2008 at 83 helps. The author says that tacit knowledge must be communicated through informal apprenticeship or one-on-one guidance. That’s the way lawyers learn.

As important, the article strongly makes the point that knowledge management is not primarily an information-technology issue. It is not about codifying best practices that can be captured, stored, indexed, and retrieved as efficiently as possible. Because of this misconception, law departments have probably invested hundreds of thousands of dollars in knowledge management systems — glorified databases – that fail to deliver the value the general counsel hoped for.

Most knowledge-management initiatives imposed from the top down fail to take hold. The big picture forest wilts. Better to plant some trees: tools, initial encourage, and ongoing recognition, and then let lawyers below them devise their own ways to circulate what they learn and value. A description in Consulting, Nov./Dec. 2008 at 51, of how Capgemini pulled this off pushed me to write. That huge consulting firm launched a post-and-tag system without announcement or training. Its popularity spread by word of mouth and “people found out how to use it within the context of what they needed to do.” Excellent grass roots!

For example, a law department might invest in low-cost wiki software, such as Knol by Google. Those lawyers who have an interest in compiling and annotating material and commenting could take advantage of it. Second, each lawyer could be encouraged to circulate each quarter one item of broader interest to those who would find it useful (See my post of Dec. 21, 2008: try a practice and share the results *7.).

Third, the law department might fund a conference call every six weeks for communities of practice – lawyer who share a common interest. One outcome from the conference calls might be collections of material that would be useful for the practitioners. Fourth, arrange time for monthly lunch-and-learns and subsidize dessert. Fifth, review the use of shared drives and create a knowledge-sharing portion.

LT Online, the provider of the Lawtrac matter management system (MMS), announces in Law Tech News, Dec. 2008 at 9, that Lawtrac can now download directly from CT Corp.’s Universal Service of Process Interface. As I thought about this database combination I gazed into a future of other databases feeding into MMS’s (See my post of Aug. 5, 2008: matter management systems with 35 references.).

For example, when a lawyer is listed on a MMS, why not draw on LinkedIn, Legal OnRamp or other professional network profiles to supplement information about the lawyer (See my post of Sept. 21, 2008: social/professional networks with 7 references.).

Or, why not pull in information about the law firm from Martindale-Hubble? Or mash-up data from a benchmarking survey, such as on comparable hourly billing rates? Why not link automatically to a judicial database or perhaps to Thomson-Reuter’s Litigation Monitor?

“People hate asking for help,” according to Stanford Bus., Vol. 77, Nov. 2008 at 9. “It makes them embarrassed, guilty, and fearful that they will look incompetent.” Now, couple that commonplace with the risk aversion typical of lawyers and the premium most lawyers place on intelligence, and you understand why in-house lawyers rarely go through the “open-door” policy. Similarly, some clients wish they did not have to humble themselves, which is how they feel, when they ask for counsel from lawyers.

The Stanford article concludes that managers, which includes general counsel, “consistently overestimate the likelihood that others will solicit them for assistance.”

Ironically, research shows that “people grossly underestimate how likely others are to agree to requests for assistance.” They note, however, “How you make your request is likely to be more significant than the magnitude of what you’re asking.

A website has a useful explanation of XML tags as applied to portfolios of contracts. “The basic mission of XML is that it can make whole documents visible and meaningful to machines. And not just a snapshot of high level data. XML allows you to tag documents with meaning, right down to the fine print on page 42. Which means that you can tell a computer to crunch through a collection of contracts and find every non-standard termination clause or definition of “Event of Default” where Lehman Brothers is a counterparty. And computers can do this much faster than humans.”

If a law department could tag its contracts with the meta-notes of XML, it could retrieve them quickly and efficiently. A similar desire for data visibility sits behind the SEC’s requirement for large companies to submit financial reports using XBRL. The idea and quote for this post came from material on the blog of Exari, dated Sept. 17, 2008.

At a PLI conference, Ed Greene of Citibank shared his department’s definition of knowledge management:

“Leveraging of a department’s collective wisdom by creating systems and processes to support and facilitate the identification, capture, dissemination and use of the department’s knowledge.”

Four phrases or words in that definition deserve special attention.

Frank Furedi, Where Have All the Intellectuals Gone: Confronting 21st Century Philistinism (Continuum 2004) at 57, cites to two sociologists who “forcefully argue the case for the close association between the sense of risk and the increase of knowledge.” As lawyers gain experience and legal knowledge, they read about and bump into examples of risks. They become more and more aware of all the things that can go wrong. To protect against what they know some become risk averse.

In other words, their agreements grow longer because each risk they encounter gets baked in and they never simplify or drop a protective paragraph lest they be blamed for not taking precautions against the adverse potentiality. The more law you know, the more legal risks loom in the shadows.

Perhaps. Yet knowledge can build confidence. Increased expertise and experience prepare a lawyer to assess the likelihood of a risk happening and the magnitude of its consequences. Knowledge begets judgment and you can shrug off the possibility of a meteorite destroying the shipment. Bigger law departments can sustain more specialization and more knowledge, yet their costs go down. They are not paralyzed by the panoply of imaginable risks but with their accumulated legal experience deal realistically with what may reasonably happen.

In the final decades of the 20th century, a backlash to Enlightenment values came to be known as postmodernism. “Postmodernists are hostile to the idea that truth can be objective, are skeptical of the authority of science and resist the idea of progress,” according to Frank Furedi, Where Have All the Intellectuals Gone: Confronting 21st Century Philistinism (Continuum 2004) at 46, fn. 37. At the risk of being presumptuous, permit me to apply some tenets of postmodernism to legal departments.

Postmodernists “claim that all knowledge is socially constructed” (at 62). As such, they would hold that what we think we understand about how best to manage law departments is a mixture of folk wisdom, prejudices, and unexamined mental habits and constructs (See my post of Feb. 21, 2007: under-determination thesis and the theory/fact dichotomy.).

Postmodernists accept no single road to understanding, including no privileged methodology such as scientific method or quantification. By their lights, benchmarks, surveys, and natural experiments have no more probative force for managers in law departments than do anecdotes, narratives, or legends.

Lawyers (well, people generally) tend to change not so much when they learn through abstract principles and theories as when they learn through experience, during so-called “action learning.” Action learning means a person tries out the new behavior, gets feedback, and keeps improving. Action learning is experiential (See my post of Aug. 26, 2006: 13 experiential learning methods.).

As summarized by the Harv. Bus. Rev., Vol. 86, at 97: “Changing basic patterns of thought, feeling, and action requires that millions of new connections be formed. Such a process must be set by constant experiential input and is therefore inevitably gradual.”

Most in-house counsel learn by doing, as apprentices. CLE is intellectual and slips away quickly; real life teaches best and sticks the longest. Talent Mgt., May 2007 at 24, puts it this way: “Talent managers know that 70 percent of learning is related to a variety of challenges you might encounter on the job.” The other 30 percent you learn from mentors, courses and published resources.

One general counsel I know asks the senior lawyers to contribute an update about their group’s activities from the previous two weeks to a document that is collectively available for editing by everyone.

A few precatory guidelines exist for how to contribute to the online collected document. Mostly, however, the style and depth of treatment is left up to the lawyers. It has evolved into a somewhat formulaic structure and format, but everyone can see what others have written and can contribute as they see fit. The technique resembles a wiki, because everyone can edit it (See my post of March 26, 2008: wiki for knowledge management at Cisco; Dec. 9, 2005: Cornell’s legal wiki; Feb. 12, 2006: predicts wikis between law departments; March 17, 2006: wikis generally; May 17, 2006: wiki-law.org; March 9, 2007: Legal OnRamp; and March 20, 2007 #1: Lucent’s law-department wiki; March 16, 2008: Web 2.0 and wikis.).

This creative use of technology for status reports allows for faster distribution and no collation and editing (See my post of Aug. 1, 2006: status reports and their drawbacks.). It also creates an electronic record of the law department’s accomplishments.