Articles Posted in Thinking

A recent book explains a half dozen ways to goose your creativity. The book is Jonah Lehrer, Imagine: How Creativity Works (Houghton Mifflin 2012) at 30-44. Lawyers practicing in companies need all the creativity they can muster, so here is my thumbnail of each method.

Spend time on a problem, then relax. Apparently, before a person is conscious of an insight, there is “a steady rhythm of alpha waves emanating from the right hemisphere” (at 30). We are more likely to trigger the alpha waves when we are relaxed, not when we are sturdily focused on a problem.

Smile and feel positive. Research conducted in Germany credits positive moods with enhancing creativity and fruitful associations (at 32).

With the surge of research on the neural underpinnings of cognition, you can’t help but project that as we learn more about the electrical and chemical exchanges in the brain, we will put more of the extraordinarily complex pieces together. Given time, research, funds, better equipment, and the resulting insights, we will know more how we think, what can help us think, and ways to spot who shows promise of the legal thinking needed.

Jonah Lehrer, Imagine: How Creativity Works (Houghton Mifflin 2012) at 17, describes an fMRI study that illustrates this future. Researchers were studying sudden insights. They found that just before subjects realized they had an answer their brains generated a gamma-wave spike, the highest electrical frequency of the brain. “Gamma rhythm is believed to come from the binding of neurons: cells distributed across the cortex draw themselves together into a new network that is then able to enter consciousness.”

Even more usefully, it was found that the gamma waves burst from a small spot on the surface of the right hemisphere just above the ear called the anterior superior temporal gyrus (aSTG). Insight, that is to say, appears to have a neural correlate. If so, we are a step closer to harnessing and spurring creative insights.

Managers in legal departments will do better to the degree they apply the lessons from these related disciplines. Art Markman, Smart Thinking: three essential keys to solve problems, innovate and get things done (Perigree 2012) brings out differences between psychology and cognitive science. As he describes the two fields, psychologists aim for the scientific study of the mind. Whether the characteristic is cognitive dissonance, working memory compared to long-term memory, risk aversion, status envy, or innumerable others, their focus is external manifestations of the mind. Studies, experiments, and observations look at how humans think from behaviors we can mostly observe.

Across the aisle are the cognitive scientists, who study within the brain. They explore our cranial wiring, parts of the brain that handle various functions, and neurological characteristics of our brain workings. It is the physical world of dendrites, synapses, electro-chemical stimulation, and FMRI’s that undergirds overt psychology, I believe, but both fields of inquiry and management insight stand on their own.

Sociology may be psychology writ large and configured by how groups of people co-exist, yet it is distinctly another level of inquiry and theory. The behavior of crowds, personal space, social support and ostracism, culture – all swarm with much more throughout sociology. Behind all these disciplines looms evolution, the exigent shaper of humanity and how we operate.

I like some rules promulgated by Nick Jarrett-Kerr of Edge International in the firm’s latest Communique. Written for law firm managing partners, the advice holds true for general counsel.

“Rule 1: not many decisions are very important.

Rule 2: the most important decisions are often made by default.” [Jerrett-Kerr doesn’t write this but I urge my consulting clients to spend 80% of their time on the very few decisions that are likely to set in train the most important consequences.]

My sense of the term “strategic planning” has been an exercise by a legal department to look ahead a couple of years and try to anticipate evolving needs for legal services and skills. What might happen in the future and how can we best prepare for it? My recent posts on strategic planning by general counsel have explored aspects of this definition (See my post of Feb. 19, 2010: DuPont’s strategic litigation budget; March 1, 2010: complex strategic plan with 30 indicators; Sept. 28, 2010: strategic review of patent holdings; June 5, 2011: difficulty of foreseeing bulk of Dodd-Frank; June 23, 2011: linking risks to strategic objectives of the company; and Oct. 30, 2011: plan your technology path, if not your departmental path.).

An article in ACC Docket, Dec. 2011, at 70, however, led me to realize that the author uses the term “strategic planning” to mean something different, improving the effectiveness of the department. Future scenarios and contingencies play no part in his four steps, which mostly involve identifying and streamlining core competencies along with “setting specific goals and priorities for the law department.”

What are some of the beliefs most lawyers in the United States take for granted, rarely consider or even notice, regarding corporate law departments? We are all blind to our own habituated views that we do not observe, to say nothing of articulating or even less questioning, what is “the way it is” or question the formative assumptions that guide our actions and thoughts. Some of those views missing in plain sight might be the following:

1. Litigation in court is the highest embodiment of legal representation.

2. Partners in law firms stand at the top of the law practice ladder, not in-house lawyers.

An article in Atlantic, Dec. 2011 at 67, proposed this distinction: “[I]deological differences stem more from differences in people’s beliefs about how the world works than from differences in their basic values”

It is hard for me to distinguish the two views in the context of a legal department.

Basic values would seem to be highly determinative in a person’s model of how things work. Consider one situation. If you believe everyone is created equal (a basic value), wouldn’t it affect how you see promotions, success in life, fairness? If you think that powerful wealthy people generally get their way (that’s the way of the world), isn’t it likely that your basic values lean toward discipline, striving and self-improvement? Not necessarily, because you could believe the essentially life is unfair or mean.

At a recent conference run by ALM, the general counsel of Rockwell Collins spoke about Six Sigma principles applied in his department. One of his slides addressed processes to determine alternative fee arrangements, and it mentioned “design decision-trees for process.”

Whenever a law department does some set of steps repeatedly – a process – it can take the time to look at who has to make decisions regarding what happens during the process and when. Once those points are identified it is not much more to create a decision-tree that embodies what has been learned. The diligent law department can even annotate the decision-tree with its accumulated experience (See my post of June 17, 2009: decision tree software with 6 references.)

John Maynard Keynes, eloquent and acute as always, offered his view on the study of economics and its tenuous link to practical applications: “The theory of economics does not furnish a body of settled conclusions immediately applicable to policy. It is a method rather than a doctrine, an apparatus of the mind, a technique for thinking, which helps the possessor to draw correct conclusions.” Keynes is quoted in the NY Times, Dec. 4, 2011 at BU 4.

Notions of how law departments are or should be managed are nowhere near as delineated and theorized as economics (See my post of June 6, 2006: best practices with 4 references; and Feb.14, 2009: best practices with 24 references and one metapost.).

Even so, just as economists don’t agree on what policies to follow, but at least try to think about problems with similar tools and assumptions, so too law department managers who try to honor an emerging discipline – such as it is – can’t say what is best but can share a framework for thinking about it. I’m doubtful there is even an inchoate, consensus framework (See my post of Jan. 5, 2010: economics, sociology and psychology as frameworks.). Aptitude as a manager in a legal department follows from a way of thinking, pragmatism, and a set of tools, not theory (See my post of July 8, 2011: toolbox-style management.).

The fast-function part of our brain, that which Daniel Kahneman refers to as System 1, operates mostly in three parts of our brain. Strategy + bus., Spring 2011 at 47, describes each of them briefly. These emanate from deep, primal parts of the brain that evolved relatively early.

One is the basal ganglia, which normally manages such semi-autonomic activities as driving and walking (See my post of May 30, 2006: habits, and the challenge of change, due to basal ganglia.).

The second is the amygdale, a source of emotions and fear and anger (See my post of Feb. 12, 2006: the amygdala hijack.).