Articles Posted in Productivity

Legal holds soak up time of law departments but not much has been published about the practice in the way of benchmarks. Law Tech. News, Vol. 15, Nov. 2008 at 32, offers a few as it summarizes a survey Global 1000 Companies about legal holds. Huron Consulting partnered with the Compliance, Governance and Oversight Council to conduct the study and obtained responses from about 50 companies.

Among the findings were that 80 percent of those companies issue legal holds for every matter (disputed matter I assume), the other 20 percent say they use risk and case analysis to determine holds. I take that to mean they decide each time whether to apply a litigation hold (See my post of Aug. 27, 2008: litigation hold notices with 6 references.).

In-house lawyers who handle contracts and agreements should always be thinking about the right balance between what the legal department does and what clients do. A handful of criteria (plus two) suggest whether the balance of work falls on lawyers or stays with clients. These distinctions may or may not be useful.

1. Drafting contracts is closer to what a law department should do; tracking and entering information about them into a database is closer to what clients should do.
2. Business-to-business agreements, such as OEM arrangements, are more likely to be the responsibility of the law department; consumer contracts fall closer to clients.

Still unconvinced about the benefits of exercise? Weigh in your mind this heavy term: nonexercise activity thermogenesis (NEAT). From an item in Bus. Law Today, Vol. 17, Nov./Dec. 2008 at 7, it means calorie consumption from slightly increased activity levels that don’t reach the level of ”exercise.” NEAT “is very possibly a deciding factor between obesity and thinness”. What I think of is the person who takes the steps each time rather than the elevator. The extra calories consumed over time, even with no activity that feels like real exercise, manhandles love handles.

The example given comes from a partner at a firm who “spends about 80 percent of his day taking baby steps on the treadmill, to the tune of six of eight pounds lost in a month (See my post of Feb. 25, 2008: exercise and the brain; April 16, 2007: corporate health centers; Nov. 6, 2007: energy; and May 2, 2008: exercise improves the mind.). An in-house lawyer could keep a small treadmill under the desk chugging away. NEAT idea!

General counsel uniformly tell me, “My lawyers are almost all working pretty hard.” How do they know and how can they prove it? Let me offer some strawpersons, in declining order of usefulness, and then torch them.

Time tracking. Few in-house lawyers have to track their time, and the data is not very reliable (IMHO), plus tracking time causes lawyers to break out in hives (See my post of Nov. 22, 2008: time tracking with 16 references.). https://www.lawdepartmentmanagementblog.com/internal-or-infernal-tracking-of-time/

Output totals. Anything countable runs into “not all are equal.” A person working on ten contracts in a week may or may not be busier than one who worked on only two contracts that week.

ACC Docket, Vol. 25, Sept. 2007 at 42, describes a Six Sigma project conducted by the Law Group at Becton Dickinson (BD). A team tackled the information-technology contracts process. During the define phase, the team “drew a process map reflecting each step in a typical contract negotiation.”

One lesson from that map was that a fair amount of communication between the employees of (BD) and the buyers was going on without everyone on the selling team knowing (See my post of Nov. 22, 2008: control of communication during an RFP process.). In a good process, there are few places where everything can stop, yet these “one-off” conversations caused such delays and there were many of them.

Another lesson from the project was that number of negotiation hours for a contract were less insightful than contract negotiation days. I have knocked process mapping (See my post of Aug. 28, 2005 with some criticisms; Jan. 10, 2008 #3: a fan of mapping; and Feb. 16, 2008: flow charts compared to process maps.), but if preparing one discloses opportunities to improve, go for it!

“By all accounts, procrastination is common, and rising (for reasons that are not yet clear).” This according to Richard B. McKenzie, Why Popcorn Costs so Much at the Movies (Copernicus Books 2008) at 217. “In 1978, the percentage of Americans identifying themselves as chronic procrastinators was 5%. In 2006, the rate was up to 28%.” As we work harder and multi-task more frenetically, do we put off more? I’ll answer that later.

McKenzie explains that present costs are unduly salient in comparison with future costs, so it is easier to postpone tasks (See my post of Nov. 17, 2008: risk aversion quantified.). Our dislike to review that marketing agreement now – the present cost – looms worse than the displeasure of clients later – the future cost. McKenzie points out that procrastination can increase stress and harm health.

But right now I can’t be bothered to apply this point to lawyers in corporations. Mañana …

As explained by Richard B. McKenzie, Why Popcorn Costs so Much at the Movies (Copernicus Books 2008) at 212, people discount their feelings associated with potential gains (or magnify the bad feelings about potential losses). Lawyer, most being people too, may do the same mental math. “One study fortified this position by finding that people will not take a 50% chance of losing $50 unless that prospective loss was set against a 50% chance of gaining more than twice $50” (emphasis supplied).

If an in-house lawyer’s psychology calls for at least double the gain (in reputation, prominence, praise, self-satisfaction or whatever) to make a potential loss palatable, no wonder risk aversion holds sway (See my post of Aug. 24, 2008: lawyers and risk averse behavior with 11 references.)! Why recommend any but the most compelling settlement, since someone might criticize the amount paid later? Why push a powerful client to yield on a legally shaky position, when the risk is manifest – disapproval, anger, endless meetings – and the gain has to be a multiple of that risk? Why sign off on an agreement when you need to anticipate twice the good to counterbalance downsides you fear?

Lawyers should interpret and apply laws and regulations, help executives set strategy to maximize gains and minimize legal backlash, draft legal documents, and give legal advice, but they should not run the operations that result from that work (See my post of Sept. 3, 2008: scope of legal department typical responsibilities.).

Each of the following activities needs a significant component of legal support, but lawyers, in my humble opinion, should not manage their day-to-day activities.

Anti-counterfeiting (See my post of Oct. 11, 2008: role in anti-counterfeiting.)

I have been meaning to write another post about a law department where the lawyers have double monitors (See my post of Jan. 18, 2008: multiple monitors.). As I spent time in a second law department so handsomely outfitted, I envied the double, large, flat screens everyone has. No more switching between email and the document you are working on! No more calling up the calculator in a cramped area or sizing windows to meet your needs!

But having just written a blog post on energy-saving suggestions (See my post of Nov. 9, 2008: three more pro-environment ideas.), I realized that the monitors consume twice as much energy. Hmmm, where are our priorities? Second, I recalled that people cannot efficiently multi-task, so perhaps the productivity gains from two screens are illusory.

A well-managed law department that I have worked with promotes a five-word acronym to help everyone take care of meetings more effectively. (See my post of April 22, 2007: meetings with 9 references.)
PACER stands for Purpose, Agenda, Conduct, Expectations, and Roles. My interpretation of PACER is that everyone should understand why the meeting is taking place (Purpose) and what topics will be covered in what order (Agenda). Further, those who attend should understand the rules of effective listening and other behavior (Conduct) and they should state at the start of the meeting what they want to achieve (Expectations). Finally, everyone at meetings should contribute according to their abilities, including to take ownership of actions agreed upon (Role).