Articles Posted in Knowledge Mgt.

A decade plus of committed involvement in a subject is the pre-requisite for expertise. Jeffrey Pfeffer and Robert I. Sutton, Hard Facts, Dangerous Half-Truths & Total Nonsense: Profiting from Evidence-Based Management (Harvard Bus. School Press 2006) at 93 state that Anders Ericsson’s research across many domains leads to this conclusion: Expertise results from “approximately 10 years of nearly daily, deliberate practice, for about four hours a day, by people who somehow (e.g., coaching, skilled peers or competitors, or books) have access to the best techniques” (See my posts of June 12, 2005 on Herbert Simon’s 10-year rule on expertise; July 15, 2005 on how to increase “deep smarts.”; and Nov. 6, 2006 on effortful study.).

I wonder how this threshold for expertise could be tested for in-house counsel. I also wonder whether the bar might be rising – does it now take a dozen years? – as the world becomes legally more complex and there are more people competing for expert status.

Moreover, Pfeffer and Sutton continue, “Once achieved, exceptional performance can’t be maintained without relentless effort.” Doesn’t that mean that fluency and understanding in an area of law withers if not used? In-house counsel who want to stay on top of their game must put forth unabated effort.

Patent applicants will soon be able to tap the on-line, collective knowledge of other patent lawyers. The New York Law School Institute for Information Law & Policy has collaborated with the Patent and Trademark Office – along with a steering committee of patent lawyers from Red Hat, GE, Microsoft, and HP – to launch the pilot program around April 2007.

As described in InsideCounsel, Dec. 2006 at 38, the program will invite law departments to expose their patent applications for four months on a publicly-accessible website. Anyone will be able to comment on the applications, especially if they know of prior art or want to add other comments such as a ranking of the claims. The knowledge network will help the PTO examiners more quickly and effectively evaluation applications and qualify the application for speedier processing.

One can imagine something similar for IRS private letter rulings, SEC comment letters, EPA advice, or FOIA requests. Perhaps I am naïve and I certainly do not know the applicable regulatory laws and practices, but if information requests could be redacted of information that identifies the requester, the collective experience of the practice community could add information for the reviewers and the community members could learn from it themselves.

No one in law departments makes much of training provided to them by outside counsel. Firms sometimes offer CLE credits to law departments who attend their training sessions. A few firms offer access to precedent databases. But real training, purposefully showing the corporate lawyer how to do something, doesn’t come up.

An objective outsider could well say that training should be expected and significant, but many circumstances may explain the miniscule role. I offer seven possible rationales.

Partners at law firms don’t want to surrender their intellectual capital – knowledge is power (to charge high fees). Law departments don’t want to pay astronomical hourly rates for training which may never be needed. Outside counsel don’t know how to train others and are not rewarded for doing so. Inside lawyers learn by doing, so law firms may believe there is no need to make a big deal about formal training. Outside counsel mostly provide brute manpower, so legal training isn’t that important. The specialty legal questions shipped to outside firms are so esoteric that it doesn’t make sense to train formally. Inside lawyers are too swamped to learn deliberately. Sophisticated legal work is mostly tacit knowledge, learned by watching an artisan at work, not explicit knowledge checked off from a cookbook.

If a law department compiles guidance for its clients, and perhaps for its own members, regarding recurrent legal questions, some people term it a “resource guide.” This was the idea expressed in the Corp. Compliance and Reg. Newsletter, March 24, 2006.

The benefits of a resource guide that people consult are multiple. Clients become more educated consumers, the law department handles fewer pedestrian requests for services, everyone becomes better trained, standards and procedures are made clearer, and legal costs drop.

A resource guide is one branch of the tree of knowledge management; its other branches include guidelines, intranet sites, client training, self-service models, post-mortems, and frequently-asked questions (See generally my post of Dec. 20, 2005 on these investments.).

Along the lines of the internet making available much management information for in-house counsel (See my posts of March 26, 2006 about open-source management information; Jan. 10, 2006 about internet tools; and Jan. 13, 2006 on more resources.), give some thought to the potential exemplified in a new website called IP Law Book Reviews.

Hosted by HSC Press of Pasadena, CA, the site currently categorizes and summarizes more than 200 books on intellectual property law. The site is intended primarily for IP legal professionals. It does not include casebooks or more than a few of many the IP books for inventors, business lawyers or executives, nor does it include books that are out of print.

This is a very specialized niche, an example for law departments of the long-tail effect. One can imagine many other sites like this, all of which together will give in-house counsel another level of resources.

A new technique that might be useful for large law departments is organizational network analysis (ONA), also known as social network analysis (See my posts of Dec. 19, 2005 on top business concepts; and Aug. 2, 2006 on what we don’t know.). One company developed its organizational network analysis by asking each person to estimate the typical amount of time save per month as a result of resources, information and help received from coworkers.

A thoughtful article on ONA in MIT Sloan Mgt. Rev., Summer 2006 at 31 by Salvatore Parise, Rob Cross and Thomas H. Davenport, offers ideas for how law departments can use ONA to reduce the loss of knowledge when a veteran lawyer leaves (See my posts of June 12, 2005 and Oct. 18, 2006 on this knowledge loss.). The issue of knowledge loss is not just about specific expertise walking out the door and also about a group’s collective ability to get work done.

Departing lawyers leave with much more than what they know; they also remove whom they know and who knows them and their contribution to a knowledge network. Some lawyers are “central connectors,” the hubs of a network of knowledge. Others are “brokers” who help integrate law departments that have a silo structure.

The cost of acquiring knowledge may be so high that it exceeds the utility of the knowledge acquired even if that utility is also high. This point from Richard A. Posner, Public Intellectuals: A Study of Decline (Harvard University Press 2001) at 153, applies to knowledge management in law departments – do we want to divert a senior lawyer to push it (See my post of July 21, 2005 on several other prods.) – and to productivity metrics – do we want to track internal times (See my post of Jan. 13, 2006 for pros and cons.). The calculation holds for evaluations of law firms – do we insist that lawyers complete rating forms online – and acquisition of billing information – do we spend time to make sense out of task codes (See my post of April 23, 2006 on UTBMS codes.)?

On this construal, if the law department can reduce the costs of information acquisition, it can delve deeper into matters and activities. An example of this would include electronic billing as well as full-text searching (See my post of March 5, 2005 on Google Desktop Search.), both of which reduce the costs of knowledge drastically and therefore correlatively open up more opportunities to make use of knowledge.

For law department lawyers who take the time to forage on the web sites of large US law firms, the pickings can be priceless. Thus, the Bloom Group has done law departments a service when it evaluated 20 prominent firms based on their site’s usefulness of organization for potential clients and depth of content. The review, conducted from Dec. 2005 to March 2006 is presented in Consulting, July/Aug. 2006 at 37. The Bloom Group gave each site it reviewed ratings of 0 to 5 on 65 criteria, so the maximum number of points any law firm could achieve was 325. The best site barely achieved a 50 percent rating.

Here are the top five and the bottom five, with their point totals: Wilmer Hale (164), White & Case (159), Paul Weiss (153), Arnold & Porter (153), and Shearman & Sterling (143).

The lowest rating five, those with the poorest organization and least useful material, were Covington & Burling (107), Sidley & Austin (105), Davis Polk (98), Williams & Connolly (74), Cravath Swaine (69) and, blush – Wachtell Lipton (41).

A few years from now, perhaps, in-house counsel may benefit from new search methods when they want to ask a question about a legal issue. Imagine a web site that collects all the postings on a certain area from blogs and law firm sites and legal publications – candidates might include environmental or employment. When in-house counsel search that mass of material, the software tracks the searches and pages they visit. Second, the searching lawyers can tag items as useful or not. Third, the software will do what the online search engine Ask does, which is to group items by theme. Already there are search engines, such as Clusty.com, that display results in thematic bundles.

The more various lawyers in a specialty use that material and enrich it with their tracks, tags and themes, the more useful it will be for other users. The idea is to look not only at links between pages, but also between people, and use social search techniques.

Hans Albers, Cisco’s Director of Legal Systems for the US and Canada, describes his department’s legal information platform in Law Dept. Quarterly, Vol. 2, May-July 2006 at 28. Any Cisco lawyer can post a question or start a “conversation,” and any other lawyer can post replies offering information and ideas. The system is indexed so Cisco lawyers “can look up all the conversations on certain themes, almost like an internal searchable blog.”

If the system has robust searching capabilities (See my post of Feb. 19, 2006 on advanced searching techniques such as by concepts.), it could help immeasurably. It sounds fairly easy to use, doesn’t take much time, and has both immediate and longer-term payback for all. What would be nice would be to have some usage metrics from the 150-lawyer department.