Articles Posted in Knowledge Mgt.

I used to believe that law departments should disseminate answers to frequently-asked questions, post legal guidance for hypotheticals, and share with clients responses to questions that might arise again, all contributing to the good of capturing and spreading knowledge (Is creating good by capturing knowledge “salutary confinement?”).

Now disabused of this innocent belief, I realize – thanks to a law department retreat I recently facilitated – that without assurance that the material will be protected under the attorney client privilege, the law department might be digging a deep litigation hole. If practices do not conform to the disseminated material, of if publicizing the law goes awry, plaintiff’s attorneys can turn the good effort against the company. No good deed goes unpunished.

A short piece by David Gilmour in the Harvard Business Review (Oct. 2003 at pgs. 16-17) makes the case for abandoning the “publish” model for KM – collect information from people and broadcast it – in favor of collaborative knowledge sharing based on “brokering.” With brokering, a law department needs to “connect people who should be connected” (and possibly reaching the wider circle of clients and law firms).

Gilmour’s company, Tacit Knowledge Systems, has created software that sifts through e-mail, network folders, intranet postings, matter management systems, and other data sources to identify common information threads. “Our systems alert people about their shared interests without identifying [the people who have the knowledge]… That gives knowledge holders the opportunity to contact seekers directly or to confidentially decline contact.” The software also fields questions.

Since it is so difficult to persuade in-house counsel to contribute to the common good of a KM repository, such an oblique, technology-based work around makes sense. If two lawyers not in a reporting relationship separately write about asbestos and temporary restraining orders, the software can let them know, confidentially, that someone else has some knowledge that might be worth sharing. (See my post of today on methods of encouraging KM.)

Responding to a survey, the ever-creative Bruce McEwan rated the following methods from one (most effective) to five (least effective) for fostering contributions by law firm partners to a KM system. (See my post of today on brokering knowledge, instead of publishing.)

Technique/Incentive ………………………………………………………………..Partners

A one-time incentive or reward ……………………………………………………….4

A large company that swallowed a succession of smaller companies during the past 10 years ended up keeping about half of the lawyers it acquired. One might assume that the 50% loss of institutional knowledge would hamstring those who remained. Not true.

Clearing out veterans, to the contrary, could be cathartic. “We don’t have to do what we always did, and just because some initiative didn’t work five years ago, perhaps it’s different now.”

Analogously, this urban myth makes me wonder about the risks of moving litigation that is well underway from one law firm to another. My hunch is that competent lawyers can come up to speed quite quickly if the files of the transferring firm have been kept orderly.

If you understand the relative effectiveness of different modes of transferring knowledge, you can more effectively boost the performance of your lawyers. In Deep Smarts: How to Cultivate and Transfer Enduring Business Wisdom, co-authors Dorothy Leonard and Walter Swap describe five modes of knowledge transfer, which range from passive reception (“Directives/presentations/lectures”) and “Rules of thumb” through a mix of passive and active learning (“Stories with a moral;” “Socratic questioning”) to the most active learning (“Learning by doing (guided experience)”)

Leonard and Swap stress that “we remember something longer if we struggle to understand it before the issue is resolved.” Active learning, the apprenticeship practicing lawyers pass through, embeds knowledge the best. Hence, law departments need to encourage teaming, active oversight, and post mortems.

The excellent book, Deep Smarts: How to Cultivate and Transfer Enduring Business Wisdom, by Dorothy Leonard and Walter Swap, discusses methods of training along two poles: trainer centered to learner centered and passing on knowledge to passing on skills.

Here are the eight methods, from the most trainer and knowledge centered to the most learner and skills centered: (1) lecture, (2) lecture discussion, (3) film, (4) small group discussions, (5) case studies, (6) role playing, (7) practical exercises, and (8) unstructured exercises. Law departments unwittingly favor preventive law training at the extreme: lectures to distribute knowledge. Other methods make increasing demands on the law department in terms of time and preparation, so they eschew them. But they are more effective.

Dorothy Leonard and Walter Swap explain in Deep Smarts: How to Cultivate and Transfer Enduring Business Wisdom (Harv. Bus. School 2005, pg. 49) that “most evidence suggests that it takes at least ten years of concentrated study and practice to become an expert (as opposed to merely competent).”

Assuming the Ten Year Rule holds for lawyers, and assuming three years of law school starts the clock, and further assuming a typical lawyer stays in one specialty area of law, then around seven years out of law school they can be considered an expert.

Having assumed all that, when does an insider have time to overlay substantive expertise with in-house savvy, which has to do with client relations, knowledge of the business, and political finesse within a corporate structure? The answer is often that deep legal expertise remains with outside counsel, whereas the lawyer hiring that outside counsel needs less substantive expertise and more generalized skills.

The loss of experience, judgment, social networks, and cohesion when a veteran retires can wound a legal department. Most of what that lawyer contributed leaves at retirement, locked away in the retiree’s brain as tacit knowledge. What can a general counsel do to staunch the retirement loss?

Have the veteran coach a successor. Have the veteran prepare guidelines and rules of thumb about what she has learned. Have the veteran draft standard form documents with alternative language to handle different possibilities. Keep matters on a matter management system so the work of the old-timer remains available to others. Maintain a document management system so that the veteran’s work product remains accessible to all.

A small entry in the May 2005 Metropolitan Corporate Counsel (pg. 65) announced that Synthetix ®, software from Syngence LLC, is a “search method which ‘thinks’ just as a human would to determine the meaning of passages … of text.” The announcement focused on using the software on testimony from a deposition or trial to find passages in other documents (stored in databases), listed in order of their relevance.

Technology being at issue, I tread cautiously here. If the software works even passably well – and having used voice recognition software for years I use “passably” with modest expectations – a law department lawyer could mark a key paragraph in an agreement and let the software find variations or glosses on it among the many other documents on a database. (Assume the department’s documents are available in the appropriate database.) The more precisely this worked, and the more documents in the searchable database, the richer the supply of relevant finds. Further, the software would strongly promote knowledge management.

In mid-2003, the Legal Technology Institute at the Univ. of Florida’s College of Law collected survey responses from 348 corporate law departments and outside law firms. The article summary mentioned document management and e-mail search applications as examples of KM [www.merrillcorp.com/solutions/lawfirms/article_legalstudy/htm]

The article summary exclaimed that “[o]ne of the more surprising findings was that …63 percent of law department respondents who reported having KM systems in place indicated that they use those systems either ‘frequently’ or ‘all the time.’” (emphasis added). What we don’t know is the number or percentage of departments that reported no KM systems in place.

Another example of self-selection undermining the statistical conclusion followed. “Of the survey respondents who reported a positive ROI from their KM program, 78% of the law departments indicated that their KM program either meets or exceeds their targeted ROI.” (emphasis added)