Articles Posted in Productivity

The Scientific Atlanta legal department includes 30 people, its general counsel Michael Veysey said in an article interview: 14 attorneys, seven contract managers and legal assistants. According to reporter Katheryn Hayes Tucker, of the Fulton County Daily Report, July 23, 2007, some of the contract managers are lawyers, some are not, but they have the authority to negotiate standard contracts up to $5 million.

My view has been that contract administration should not reside in the law department (See my post of May 5, 2006 and references cited.). If it does remain there, however, it makes sense to have specialists to handle the bulk of the contractual matters. My further view is that after some period of gaining experience, lawyers and non-lawyers are on the same footing in terms of judgment and effectiveness.

No lawyer wants to confess that some of what he or she does is make-work, not worthy of that person’s experience and cost. If asked directly to disclose their low-value activities — and everybody has some of it — they hedge and fudge and protect themselves.

To sidestep this difficulty, at least to some degree, ask your lawyers these three questions:

(1) “Among the lawyers in your group, what work do you think has the lowest value?” This question assumes more than one lawyer works on similar matters. It’s effectiveness stems from that fact that It is less incriminating to disclose about others than about yourself.

The best way to train in-house counsel on software applications is not to run a single, long, intensive session once the system is ready, and then let them go thereafter. Rapid exposure leads to rapid decay; the deluge of knowledge runs off and does not soak in. Usually, after a heavy duty immersion, people usually retain a very small percentage of what they were presented.

As recommended in MIT Sloan Mgt. Rev., Vol. 48, Summer 2007 at 52, it is far better to host a series of one- or two-hour sessions on important skills every two to four weeks. During the days in between lawyers can rehearse, apply, and more personally learn the new techniques and capabilities. At the next session they can even ask questions about problems they encountered. Research also shows that to the degree training sessions resemble the real world and use actual examples, learning increases.

Unlike much of the work that comes to a law department, the patent group has considerable influence over its own workload. I thought about this unusual aspect in the midst of reactivity when I read that “Hitachi Ltd. has boosted profits by pruning its patents. It scaled back its number of patent applications beginning in the early 1990s — and still managed to more than double its licensing income. Before Hitachi files for a patent, the value derived from the innovation must be clearly defined, whether from licensing to earn direct revenue, cross-licensing to obtain critical freedom of action, or to secure strategic alliances or exclusive use in its own products.”

The quote is from the MIT Sloan Mgt. Rev., Vol. 48, Summer 2007 at 16, and value-setting alludes to the fact that internal patent counsel have much say over whether an invention is patentable and how widespread should be the patent protection, both of which decisions bear on workload. In contrast to their brethren in the law department, patent lawyers determine to a large degree whether the company should proceed to apply for patents and how broadly to do so.

Wired, Aug. 2007 at 56, urges people in charge of meetings to consider a half-dozen ways to improve them. (1) Don’t have a meeting at all. Perhaps the law department can settle the issues by e-mail or phone or in the informal one-on-one chats. (2) Prepare a clear agenda. For every meeting, outline for the participants ahead of time what will be discussed, what decisions have to be made, and some sense of the order and timing of the topics. (3) Invite as few people as possible. Just as you should keep to a minimum whom you copy on emails, likewise prune meeting invitees to the essential people.

(4) Do away with chairs. If people can only stand during the meeting “It’ll keep things high energy, short, and to the point.” (5) Start on time. “Consider an incentive system that records promptness — say, buying only enough snacks for early birds or letting people speak in the order they arrive and ending on time. Tardy folk don’t get their turn.” (6) Set a timer. Start and end your meetings promptly according to a clock that everyone in the room can see.

Many in-house counsel procrastinate when it’s time to do some administrative tasks that they dislike, such as to submit timesheets, review invoices, complete evaluation forms, or enter status updates into matter management systems. Prodded by an e-mail alert, they can ignore it amidst the flood of other emails. Pop-ups on calendars spur no action. Policies online, no matter how strict and clear, fail. But if you unleash the power of “ambient information,” lawyers may be much more likely to act.

According to Wired, Aug. 2007 at 54 ambient-information techniques try to “combat data overload by moving information off computer screens and into the world around us.” One of the devices is known as the Ambient Orb, a small ball that changes color in sync with incoming data. It would glow red on the lawyer’s desk when the lawyer is late for some task.

Studies have shown that people are much more likely to act on a subtle but continuously present message than an intermittent one. Here is an entrepreneurial opportunity (See my post of Sept. 22, 2006 on other money-making ideas in this blog.).

General Counsel ought to feel completely free to call or speak, directly, with any lawyer the department, regardless of level. Doing so, however may upset the boss of a lower-level lawyer who is called. Skipping a level can make that person feel that they are being gone around, disrespected, or marginalized.

Be sensitive to the reverberations from the skip-level contact. But I think the most important value at stake is open communication. A general counsel encourages people to speak freely and promptly by keeping the channels of communication open at all levels (See my post of Sept. 25, 2006 on “open-door” policies.).

One way to cope with more work despite having the same number or fewer staff is to take more legal risks. The contract that you only review for key elements harbors more legal risks than the completely-reviewed one. The contracts below a certain amount that you don’t even look at could expose your client to a risk later, but the time invested now to reduce that risk is not worth it.

Actually, we tend to speak as if we can grab, measure out, and fence in legal risk, but we can’t. Risks in the law are contingent and not quantifiable (See my posts of Nov. 15, 2005 and references cited which grapple with definitions of “legal risk”; Jan. 10, 2006 on ERM; Jan. 13, 2006 on uncertainty vs. risk; and March 1, 2007 on compartmentalization and legal risk.).

Lawyers may tend to be risk averse (See my posts of April 12, 2006 on risk aversion and personality styles; and Oct. 18, 2005 generally on lawyer on risk aversion.), but under pressure to accomplish more, some tradeoffs between risk minimization and necessary output become acceptable. Take smarter risks, explain that position to clients, and be prepared to take some arrows.

A sticky point in many law department situations is whether a lawyer should make a decision on his or her own or first check with the general counsel. The nature of a hierarchical organization pushes people to protect themselves from later criticism; they run too many things by the boss. Naturally, the boss only wants to see boss-level problems, but everyone below feels safer if they err on the side of over-disclosure. Where decision-making authority is unclear, and too many inappropriate decisions are bucked upstairs, a law department bogs down (See my post of Oct. 22, 2006 on bureaucracy in law departments.)

No best practices exist as to this delicate balance – proceed on your own judgment or buck the call upstairs. I mostly believe in the aphorism “better to get forgiveness than permission” but that’s much easier said from the sidelines or the boss’s desk.

William Shull, chief patent counsel at Halliburton Energy Services Inc., believes that cash awards encourage inventors to bring forward their patentable ideas (See my posts of Oct. 20, 2006 on Dial’s incentive program; and Jan. 27, 2006 on options granted as rewards for patents.). Shull spoke to a panel at the InsideCounsel Super Conference 2007.

Halliburton pays employees up to $3,000 for each commercialized patent. The company also rewards employees who author “defensive publications” that can serve as prior art to block other company’s inventions from being patented (See my post of Aug. 3, 2005 on Microsoft’s goal to produce more patents.). All incentive systems distort behavior – their purpose, after all – but Halliburton’s lawyers retain control because they decide whether to apply for a patent. Also, the restriction of “commercialized” is unclear but it suggests that a second control, before an inventor sees the cash, is whether the company sees the cash from the patented invention.