Articles Posted in Productivity

Everything influences a law department’s workload, from clients to cases, from resources to roles, structure to software, time tracking to training (See my post of May 19, 2009: descriptive metrics for legal department workloads; and May 26, 2007: productivity metrics increase in the face of workload.). Too many things influence workload in a law department for this single post to cover that long waterfront. Indeed, you could fairly say that this blog as a whole tries to tackle law department workload.

Even so, among the 6,276 posts on this blog I found and organized here more than a score that make a substantive point about workload. For instance, several spoke to indicators of workload by practice area (See my post of Dec. 22, 2005: international M&A – rules of thumb on costs and staffing; Jan. 6, 2006: some practice area metrics for workload; May 5, 2006: contract-related activities; Aug. 22, 2006: lawsuits pending may be poor indicator of volume of work; Nov. 6, 2006: litigator workloads at AXA; and Dec. 10, 2009: patent licensing pushes activity.).

Drivers of individual and departmental workload appear in posts (See my post of Oct. 30, 2005: administrative time squeezing out substantive lawyering time; June 28, 2006: client training effects workload; Oct. 12, 2006: new roads, filled; new lawyers, filled to capacity; Nov. 24, 2007: complexity, volume and velocity all determine workload; April 9, 2008: quasi-legal tasks add work; June 15, 2008: Supreme Court decisions can significantly affect law department workload; Jan. 12, 2009: a person’s supervisor strongly influences workload; March 12, 2009: to bring work in doesn’t necessarily mean to add workload; and July 7, 2010: make policies easily available online to reduce constant questions.).

A large portion of what in-house lawyers cope with, unravel, interpret and apply circles around regulations promulgated by the federal government. The Economist, March 19, 2011 at 5 says that “Some 1,000 pages of federal regulations were added each year Mr. Bush was in office. A quarter million Americans have jobs devising and implementing federal rules.” Our nation’s laws and the profusion of regulations that embellish them pervade the concerns of corporate lawyers in all practice areas.

The amount, complexity, fluctuation, and level of enforcement of regulations without cavil drive corporate legal headcount and spend (See my post of June 15, 2005: Sox compliance costs; Dec. 14, 2005: legal intensity of regulation; April 19, 2006 # 1: complexity of federal employment regulations; Feb. 25, 2008: service providers for bill and regulation tracking; and March 29, 2010 #2: Sarbanes’ compliance costs.).

One of my posts yesterday mentions a trillion dollar cost of federal regulations (See my post of March 27, 2011: methodology might show alignment and cost avoidance.). I feel obliged to add my balancing belief: government regulations do far more than simply impose costs. One industry’s regulatory burden – clean up strip mines, install catalytic converters, or light railroad crossings, for example – could be millions of people’s improved quality of life. A compliance “cost” – pasteurize milk comes to mind – benefits every child who drinks milk. All regulations observed impose costs but they generally aim to reduce the externalities otherwise splattered out by a laissez faire, caveat emptor economy (See my post of July 27, 2007: regulation that lets purchasers of airline tickets benefit from lowered prices.).

“Everything in moderation” echoes Greek philosophy but for law departments, even mothers’ milk curdles if overdone. Consider several assuredly good things that turn bad if overdone.

Law departments want excellent client satisfaction ratings, but if they rise too high something is amiss. If lawyers never rein in clients, what good are they?

Timely calls by clients for legal counsel mean they recognize legal issues and want help, unless they are too hair-trigger and lawyers waste time prematurely (See my post of March 22, 2011: measuring the timeliness of client calls.).

Dan Ariely, writing in the Harv. Bus. Rev., March 2011 at 40, describes a thought-provoking contrast between what he terms “complete contracts” and “incomplete contracts.” He believes that “business’s increasing dependence on (I would say, fetish for) absurdly detailed contracts in every situation” leads to problems. If some situation arises that the detailed contract doesn’t address “there’s no default to goodwill – it’s happy hunting season for all.” If nothing was said, anything goes.

By contrast, incomplete contracts “lay out the general parameters of the exchange (the part that we shake hands over), while the unexpected consequences are covered by social norms governing what is appropriate and what is not.” They are constitutions of broad understandings more than civil codes of precise and comprehensive coverage. The contract incorporates honorable business dealings.

The distinction makes sense to me, and suggests one minor and one major implication. The minor implication: if your law department negotiates an alternative billing arrangement with a firm, lean toward incomplete contracts. Trust, after all, and a goal of fair and longer-term service, make or break such arrangements. Likewise for outside counsel guidelines (See my post of Feb. 6, 2008: shorter is sweeter; and March 5, 2008: detailed and strict guidelines compared to short and constitutional.).

“We trust our legal department to be risk-averse and process-oriented, and as a result, they’re not very provocative and they’re not controversial.” With those disparaging words from KM World, March 2011 at S3, an executive of a content management vendor roundly dismissed at least his legal department.

Process-oriented. The image held by the executive may be more common than I want to believe. Non-lawyers may envisage a cookie factory where business terms go in and by some recipe and cutter contracts come out. Someone sues and a process grinds through discovery, papers filed in court, and in due course settlement. You need a patent; we assembly-line a patent. Behind the lawyer’s door, many might believe, it’s all so step-by-step, filling in the paperwork the courts and agencies require – while any variance from the well-trod path of process means you pick up the phone and pay a lawyer from a firm. Process-plodding.

Ironically, this blog and other observers urge process improvement in law departments, or its cousin, project management. The more we standardize and track and process map, the more efficient we will be. But to the extent we do so we may feed misimpressions senior clients hold about how rote is the work done by law departments. Call me an elitist or apologist, but the important work of in-house attorneys has a solid proportion of difficulty, unpredictability, variety and craft. Often far from process-oriented.

For every hour today’s in-house lawyer works, productivity far exceeds what was possible as recently as 20 years ago. That’s a broad claim for a tiny post, but let me draw on economic history, inspired by Deirdre N. McCloskey, Bourgeois Dignity: Why Economics Can’t Explain the Modern World (Univ. Chic. 2010) at Chapter 6. A famous study looked at the cost of lumen hours (lighting) per hour of human work needed to pay for it so I will try something analogous with “page-letter hours”: the hours of law department work needed to handle a one-page letter.

Imagine the corporate lawyer of the ancient 1980’s who handwrote a letter on a yellow pad with a fountain pen. [Don’t laugh, but a ballpoint pen “eases handwriting by a factor of perhaps six over quill and ink.”] A secretary struggled a bit with the handwriting, but typed the letter on a manual Remington. Back it went to the inbox of the lawyer, who revised the hard copy and returned it – perhaps more than once. Then, carbon copies were carefully typed, envelopes prepared, stamped. Four days later the recipient’s letter opener slit into it. Meanwhile multiple copies had been filed, hopefully correctly, in manila folders and redwells on shelves.

For the next 20 years a steady tide of productivity flooded in. Dictation equipment, electric typewriters, and erasable typewriters. Photocopy machines reproduced everywhere. Vydec and Wang and the IBM PC ushered in word processing. Fax machines sped delivery, and then the Internet kicked everything to a speedier, cheaper and easier level. The secretary disappeared, templates for letters became routine, PDF locked down documents, and the one-page letter arrived in seconds after a few minutes of work. The filing happened automatically with document management software. Or, perhaps, the letter became completely obsolete, replaced by an e-mail alone or a Skype call.

Meetings — @#$&^%$ — the bane of in-house lawyers. Can’t live with them but (in a big company) can’t live without them. Further, a well-known software designer, Will Wright of Electronic Arts, estimated that with a team of twenty people, “three hours was usually spent working for every hour spent on meeting and coordinating, in Rob Goffee and Gareth Jones, Clever: Leading your smartest, most creative people (Harv. Bus. Press 2009) at 32. Wright believes that as numbers on a team increase, “the dynamics of meeting time and productivity almost reverses.”

No law department that I know of measures the ratio of meeting to non-meeting time. Not that meetings are unproductive, but they have a rigidity that certainly cuts down on your ability to do anything else (See my post of March 30, 2008: lawyers who use laptops during meetings.).

Here are two more suggestions to improve the effectiveness of meetings. First, consider the advisability of a general understanding for meetings that “If you don’t speak, don’t come.” Many times I have been in meetings where junior employees of a company come and never venture a peep. Second, from Will Wright, encourage team members to excuse themselves from a meeting where they think they will no longer be needed or benefit with the phrase, “Do you need me anymore?” (See my post of April 22, 2007: meetings with 9 references; and July 15, 2009: meetings within companies or departments with 13 references.).

In 2006, Fujitsu began publishing its intellectual property strategy. Fujitsu, according to Intellectual Prop. Mag., Sept. 2010 at 93, is the world’s third largest IT services company and a major technology innovator. Making its IP direction available to the world, the company leads in this practice – few have followed its lead, however – because it wanted everyone in the company to understand research directions, the importance of IP, and the commercial promise of IP. It also wanted customers to have peace of mind about where the company was headed with new products. It also serves as an excellent promotional piece.

The article makes clear “that the published report is informative but does not give too much away.” Even so, lawyers work hard on it. Thus, my reason for writing about the IP strategy document of Fujitsu is not only to point out a source for readers of such a document but also to acknowledge the significant burden placed on an IP group of in-house lawyers if they bear primary responsibility for the drafting.

“The pursuit of perfection is one of the great adversaries of speed, performance and execution” writes an author in the Conference Rev., Winter 2011 at 5. In-house counsel should take the advice to heart: “Rather than seeking what cannot in most cases ever be achieved, it makes more sense to seek the highest standard of quality that can be delivered in the shortest period of time, and that is economically balanced relative to the constraints of an ever-shifting marketplace.” Nearly always the added benefit to your client of polishing and pondering and triple checking costs too much in dollars and delay.

Similarly, the author criticizes the rejoinder, “Would you rather have it quick or right?” The choice is not nearly so binary, ever. Decisions always come with probabilities and the precision of those odds don’t appreciably improve after lengthy deliberation and effort.

To hold law firms to perfection likewise hobbles them and impoverishes you. Most of the time, very good work will do very well. Even that aspiration challenges most of us, let alone some Olympian level of quality.

As software improves our ability to search documents for ideas and concepts, instead of only for text strings, in-house lawyers will not only cope with discovery requests more effectively but will also more effectively be able to find useful material for their practice. KMWorld, Feb. 2011 at S9, has an interesting foreshadowing by an executive at EMC SourceOne of three directions being pursued under the rubric of conceptual search.

1. “Word sense disambiguation” capabilities help figure out the actual meanings of words and their fundamental concepts. For example, I think the software uses knowledge of grammar to help.
2. “Latent semantic analysis” uses vectorial semantics (“documents and queries are represented as vectors within a linear algebra matrix”). If you look at several related documents and link key words in them to each other as a network, the software makes more sense out of them.