Articles Posted in Productivity

Scientists thrive on experiments, carefully designed and thoughtfully construed. Few general counsel, perhaps none, deliberately experiment with a management method and try to learn from the outcome. Some of them try all sorts of things but they don’t set up control groups, gather data over time, reduce variables, and adhere to experimental methodology. Having mentioned the desirability of testing the effectiveness of different courses of action deliberately (See my post of March 25, 2008: randomized tests and experiments by law departments.), I should suggest some.

What if you stopped holding staff meetings for a quarter, and then quizzed your direct reports as to what they feel about cessation of the meetings? What if you experimented with office hours, where anyone could sign up to spend 15 minutes with you on any topic? What if you tried out incentives to get people to contribute to knowledge bases? What if you randomly assigned cases to a trio of a partner, associate and paralegal? John Brockman, Ed., This Will Make You Smarter (Harper Collins 2012) at 25, got me thinking about this. All managers should try semi-formal experiments.

The Economist, March 3, 2012 at 20, describes a nascent movement of people who measure aspects of themselves over time. They describe an investment banker who wears a headband at night that tracks sleep quantity and quality by measuring brainwave activity. The data from that tool, along with other information the banker tracks, such as diet, caffeine and alcohol consumption, and exercise help him sleep more soundly. Other examples suggest that in-house lawyers might learn much about their patterns of alertness and concentration if they measured themselves more. Passive devices of all kinds can (or will) track stress, engagement, break points and more (See my post of Sept. 22, 2010: pomodoros.). For example, the article mentions an adhesive patch that measures heart rate, posture, motion and temperature, all of which bear on intellectual sharpness and duration.

Why not have gauges that gives us clues as to our stamina, logginess, best time of day for thinking? Self-quantifying monitors will be available to guide us to greater productivity (See my post of July 29, 2007: ambient orbs.).

A piece in the Economist, March 3, 2012 at 16, connects size of companies and creativity: “Size allows specialisation, which fosters innovation.” In my long-running series of discussions on why larger companies have less spending (in proportion to their revenue), I haven’t cited this link.

It makes sense. A specialist, more likely found in a larger law department, will be able to come up with new ideas more frequently than a generalist lawyer. The generalist, more common in smaller departments, struggles just to cover the basic points of an agreement or transaction that is unfamiliar. An expert moves swiftly beyond fundamentals and can devise improvements. All those small or large innovations pay off in lower legal costs as departments grow larger and can sustain specialists.

The 2011 In-House Counsel Barometer, produced by the Canadian law firm Davies Ward Phillips & Vineberg In association with the Canadian Corporate Counsel Association (CCCA), asked respondents to break their work day into three categories: legal work, management, and business strategy or advice. The results from 864 total respondents to the survey were that about half their time went to “legal work” (53%), while “management” and “business advice” split the remaining time (24% and 23% respectively).

The report page that describes these findings does not explain “management” but we do know that almost half the law departments have three or fewer lawyers, so there can’t be much supervisory time devoted to other lawyers (See my post of March 12, 2012: mostly small legal departments in Canada.). It could be that the oversight of outside counsel counts as “management.” More mischievously, one could wonder if it refers to “managing up.”

It sets me back that of these in-house lawyers perhaps only half their work time is devoted to actual legal analysis and service. If that is what they would pay outside counsel to do, in contrast to “management” and “business advice”, could it be that fully loaded costs per hour are twice as high.

Legal agreements put off clients because they are dense, inter-connected, and one dimensional, in the sense that they are dense, linear text. Were there tools to show the provisions of an agreement visually, both clients and lawyers would gain. This blog has foreshadowed this idea but never explicitly proposed the solution: concept-depiction software (See my post of Nov. 28, 2005: mind mapping software; Feb. 23, 2006: argument diagramming; and May 10, 2006: influence diagrams; Feb. 16, 2008: flow chart a complex process; March 7, 2006: TQM tools such as cause-and-effect diagrams; Jan. 6, 2009: visual presentation of ideas; May 15, 2009: idea relationship software with 6 references; Feb. 8, 2011: digraphs to show tasks, time, and dependencies; Jan. 19, 2012: Transparency Labs and contract illustration.).

If key parts of an agreement were transformed into circles of various sizes according to their importance, for instance, and perhaps colored to show whether they concern potential liability or potential benefit, and lines linked the term circles to defined terms or related provisions, everyone could fathom complex agreements better.

Text lags behind diagrams when it comes to depicting causal relations. What influences what and how that is related to something else can be described in words, thousands of words sometimes, but a picture does it instantly. Venn diagrams, decision trees, data visualization, and patent landscapes also give a visual sense of concepts. The tools of visual presentation are poorly used in law departments.

At a fundamental level, the output of a legal department, both quality and quantity, depends on how diligently its members work. Ability counts, hugely, but sheer doggedness and concentration goes a very long way. So, when I read in the NY Times, Feb. 26, 2012 at BU8, about “research showing that the average employee admits to wasting two hours a day on nonwork tasks,” I wasted no time to busy myself on this post.

We may never have solid numbers on the number of hours logged by in-house counsel, let alone how many of those hours are “wasted.” For many reasons, none of that will gel. I don’t trust self-reported hours from in-house counsel, to say nothing of numbers pulled out of the air by survey takers.

The article claims that one out of five people are chronic procrastinators. Try proving that number! It does point out that more productive people tend to focus on progress over perfection. For in-house lawyers, too, it is sound advice: Keeping moving the ball along and correct your course as you go.

The data reported in Exari’s white paper, Corporate Counsel Contracts Survey Report, Dec. 2011 at 8, appears impressive but upon reflection offers little insight. The company’s recent survey of approximately 100 legal departments asked them to estimate the average time they spent reviewing each contract. A chart shows four choices and what percentage of the respondents selected each choice. Roughly speaking one quarter chose each of about one hour, four hours, eight hours, and more than eight hours.

The distribution of those responses is so wide, a range of more than 8-to-1, that the results tell us little. Perhaps the question should have posited a representative contract and asked about that because the data as given leaves you scratching your head. It just cannot be that some legal departments average an hour per contract they review while others require more than a day. Something else is going on that distorts these response.

Quite possible the kinds of contracts being thought of are not the same. For example it may be the review of a routine sublease takes hardly any time at all by an experienced lawyer and some law departments mostly have similar commodity contracts. On the other hand the review of an agreement to construct a nuclear power plant justifiably deserves days and days of careful thought.

Exari’s white paper, Corporate Counsel Contracts Survey Report, Dec. 2011 at 7, draws on responses from approximately 100 companies. They report that “an average of 67% of their contracts is created on their own paper and 35% of those agreements are renewals. Roughly 72% of contracts created by the respondents are reviewed by legal.”

It would make sense that the larger the company the higher the percentage of contracts, at least on the sell side, would be on their own paper. They have the clout to prevail, which is yet another advantage of scale. Second, renewals are undoubtedly much easier to complete – at least in terms of legal approval – than the initial contract. Finally, although contract review occupies a significant chunk of many in-house lawyers’ time, from this data something like a quarter of all contracts created within a company is handled solely by the business units. That speaks to the plentiful supply of form contracts and fall-back provisions that clients can draw on by themselves. On the other hand, law departments review a much higher percentage of contracts that come on the other side’s paper.

Paul Lippe, in his email to Legal OnRamp members of Jan. 17, 2012, offers “five phenotypes of change reactors.” They characterize general counsel (and all people) on a spectrum of willingness to try something new.

• Innovators, who do new things because they like doing new things.

• Early adopters, who want competitive advantage over others.

For years there has been a plain English movement that has sought to simplify and clarify government documents and commercial agreements. A further development may be Transparency Labs. Its goal is to help consumers understand so-called “fine print” in contracts.

“Our team of experts starts by spending hundreds of hours analyzing individual fine print documents and labeling their constituent contract terms. These are the “genes” that make up the fine print. We map these genes along vectors, which enable us to compare one fine print agreement to another. Using this data, we can also create benchmarks to measure relative concepts like language complexity and consumer friendliness.”

That paragraph, dense with provocative concepts like genes, vectors and benchmarks, suggests all manner of analysis that could be possible for contracts worked on by legal departments. Further, Transparency Labs applies ideas from information architecture and visualization to make contracts clearer. Wouldn’t it be exciting to see a patent licensing agreement analyzed with these tools against counterpart agreements and then its key provisions displayed graphically?