Articles Posted in Productivity

If a general counsel or other manager in a law department sets out to accomplish a specific goal in a set period of time, that is an initiative, also referred to as a project (See my post of Jan. 7, 2010: examples include to license a new software system, change the mentoring program, set up a pro bono program.). It is a formal, recognized and perhaps even named management effort with boundaries of resources and objectives.

A process, by contrast, is a set of activities that goes on, often unannounced, unnoted and unnamed, like tracking time or distributing board books. People do it over and over and often don’t consciously think about the steps, let alone how to improve them. There is a process to make reservations in the conference room and a process to call the help desk when your monitor goes blank. Processes in law departments are everywhere, perhaps hundreds of them. Processes have component steps and they do have some variability, but unlike projects, mostly ad hoc and novel with a team designated for each, a process is to varying degrees standardized and familiar and no one may be really in charge or accountable.

Just as processes have associated tools, a body of knowledge, such as process maps and guidelins, so too do management projects. Books are written about project management, classes and consultants stand at ready, and there are tools galore, such as GANTT charts.

How you manage your only absolutely finite resource – your fixed allotment of time – determines your effectiveness. That much may be accepted intellectually, but under the onslaught of pressure, emotions, and foibles, our best laid plans aft gae awry. We don’t schedule ourselves very effectively and, worse, for many in-house lawyers, someone else sets the pace.

Despite its paramount importance, how in-house attorneys dole out their minutes and hours has gotten relatively little explicit attention on this blog (See my post of Sept. 3, 2008: general counsel are in control, except their own calendar; Oct. 4, 2009: give direct reports a time budget; Nov. 13, 2009: much of GC’s time is fixed by others’ schedules; Dec. 10, 2009: give yourself time between meetings; Sept. 16, 2011: limit meetings with clients to 30 minutes; and Oct. 31, 2011: build in time margins.).

My only suggestion is a common-sense one: take a few minutes to review and think about your own calendar and patterns and whether you could dole out your finite minutes more effectively.

“Regulatory proceedings” and “regulatory investigations” are terms used in the most recent Annual Litigation Trends Survey Report of Fulbright & Jaworski. No distinction is made between them, but one feels adversarial (investigations) whereas the other could be an administrative hearing like a rate increase proceeding.

Sixty percent of their 405 respondents (U.S. and UK) did not have a single regulatory proceeding commenced against them during 2010. That means forty percent did. The next page of the report (pg. 27) states that 55 percent of the U.S. respondents had retained outside counsel during 2010 for assistance in any governmental or regulatory investigation. The two figures mesh reasonably well.

The Eighth Annual Litigation Trends Survey Report of Fulbright & Jaworski found (at 13) that 18 percent of its 405 responding companies faced at least one lawsuit with more than $20 million at issue (5% of the respondents faced 6 or more). There is no breakdown given for U.S. and UK participants. A page later, the Report says that four percent of the U.S. respondents were involved in at least one arbitration of that size (12% among the UK participants).

If all we knew were those figures, is it plausible to bump up the percentage for the U.S. group, a country presumably more litigious and profligate than the UK, so that major lawsuits involve 20 percent of them? That would leave something like a ratio of one out of five with a $20 million+ lawsuit for each one out of 25 with one or more such major arbitrations. Hence, I put forward the 5-to-1 ratio of major lawsuits to major arbitrations.

A bit of corroboration appears later in the Report. The ratio of companies initiating at least one lawsuit during 2010 to those initiating at least one arbitration was 52 to 19, or about three lawsuits for each arbitration initiated.

During the past one-thousand posts, litigation that involves patents accounts for several of my posts (See my post of Dec. 17, 2010 #3: patent trolls and lawsuits; Jan. 14, 2011: patent litigation costs; Jan. 22, 2011: low percentage of chip patents in litigation; June 19, 2011 #4: LITAlert database of patent litigation; July 19, 2011: patent litigation metrics in France; Aug. 23, 2011: patent awards to trolls compared to operating companies; and Sept. 13, 2011: $7 billion cost of NPE litigation.).

From the same set of posts, workload for patent lawyers shows up in several (See my post of Jan. 10, 2011: competitive monitoring; Jan. 10, 2011: R&D staff numbers compared to patent lawyers; Jan. 28, 2011: reporting lines in French law departments; Jan. 28, 2011: EADS encourages patentable research; June 8, 2011: executives value IP increasingly so more work incurred; June 19, 2011: consequences if a company’s patents are deemed industry standards; April 14, 2011 #5: American Express’ redesigned patent program; Aug. 10, 2011: ratio of patents applied for to granted regarding cell phones; and Oct. 16, 2011: defensive publication.).

Given my fondness for metrics, a number of posts refer to benchmarks and calculations regarding patents (See my post of Jan. 3, 2011: swarms of patents from China; Jan. 11, 2011: synthetic indices; and June 13, 2011: two common KPIs in patent management.).

Good advice, in my view, about use of e-mail comes from the NY Times, Dec. 25, 2011 at BU 8. In a column that interviews CEOs, the most recent one explained a rule about disagreements by e-mail. Basically, after the second e-mail of disagreement (I write: “The moon is solid.” You write, “It’s made of green cheese.” After I write, “No, solid swiss.”) that’s the end of writing online to each other. The cultural rule in that company says you pick up the phone, or Skype for a video discussion, and hammer out your views. I strongly support that rule: if you want to understand someone and figure out a solution, talk to them.

The CEO added: “It takes 90 percent less time to resolve conflicts when we talk, compared with when we write.” Of course, the CEO has done no study of the time it takes to resolve conflicting by discussion compared to by e-mail but the faux metric has rhetorical punch.

A rare example of quantitative research that bears on management issues of legal departments appears in the Acad. Mgt. J., Oct. 2011 at 981. The authors analyzed all two-party disputes involving vertical relationships handled by one law firm in Western Europe between 1991 and 2005. Those 102 disagreements involved 178 different companies and amassed over 150,000 pages of documents. The researchers classified the contracts at issue as distribution (35.3%), production supply (29.4%), information technology (26.5%) and consulting and other services (8.8%). Perhaps that is a reasonable classification scheme and distribution in general for vertical (purchaser-supplier) procurements. They also classified the key provisions in terms of whether they emphasized control or coordination.

The researchers drew on earlier work that developed “an unweighted index of contractual complexity, which tabulates the presence of up to eight key contractual clause categories.” At least two other studies had used that index (See my post of June 25, 2007: contract complexity; Jan. 24, 2010: group contracts by complexity; Feb. 15, 2010: software to gauge complexity of contracts; Oct. 31, 2010: Halstead metrics of software complexity translated to law department contracts; and Nov. 10, 2010: response to comment on contract complexity; and Jan. 24, 2011: a method to group contracts by complexity.). Law department managers might find useful insights in the academic literature on contractual sophistication and how to assess it.

Collective actions by several general counsel is what this post has in mind. They agree to do something jointly and the resulting consortium can out-achieve what any individual department could. Previously, I have assembled 30 posts on this blog that refer to aspects of collective (or potential collective) action by multiple law departments. Having since then accumulated six more, here is the entire set organized by topics.

Technology (See my post of March 27, 2005: AI software; May 20, 2005: joint technology development; Sept. 21, 2005: Cisco and shared development costs for software; Oct. 19, 2005 #3: technology development; Feb. 1, 2011: law departments might combine to develop apps; and Nov. 22, 2011: teaming to develop augmented cognition software.).

Cost control (See my post of July 21, 2005: HR systems; May 13, 2007: League of Minnesota Cities and legal insurance; Feb. 25, 2010: pooling of purchases by smaller legal departments; Oct. 4, 2010: gathering of law departments and law firms to think through reserve setting; and Feb. 21, 2011: possible posting of a cash prize for innovative management ideas.).

Adrian Furnham, 50 psychology ideas your really need to know (Quercus 2008 at 118, discusses brainstorming and concludes that “people working alone on a creative project produce better and more answers than a brainstorming group.” Any group, in fact, could suffer from these debilitations. He offers three explanations, and I quote his terms.

(1) Because of “evaluation bias,” people become self-conscious in groups and clam up even if they have good ideas.

(2) “Social loafing” allows some people in a group to ride along on the coat-tails of the more energetic members of the group.

Self-help best-sellers (“You can be anything you want to be if you [do this magical thing]!!”) leave me more than a bit cynical so it was with considerable interest that I read in the NY Times, Nov. 27, 2011 at SR8, about willpower. It’s hard for in-house counsel to slog through the final pages of a turgid contract, or to review the bill that runs into hundreds of thousands of dollars, to push for the conversion of data by the end of the month – to demonstrate resolute willpower.

The research described in the article disputes the notion that willpower has a set biological limit due to either the hypothalamus or your glucose level and that you can’t increase it. The authors found that those who believe that their willpower doesn’t face natural limits are much more able to push on and exercise more self-control. If you change your mind-set from willpower constrained to willpower unleashed, you will benefit.