Articles Posted in Thinking

A piece the ACC Docket, June 2010 at 18, strains a bit (pun intended) to compare weight lifting to practicing law in-house, but most of its points head in the right direction. Except one. The author says that athletes shouldn’t try to lift absolutely as much as they can, an egotistical effort that causes injury, so too lawyers should see themselves as “entering a brainpower contest.” Lawyers for corporations work as a team so “the in-house lawyer who flaunts her brainpower will be perceived as arrogant or condescending.”

Flaunting intelligence is wrong, because by definition it means you rub in you quickness, make sport of slower-witted people, taunt them about what they are not as good at, make them feel bad. You shouldn’t flaunt height or hair or good looks or accent or birthright or skinniness or shiny skin or anything the other person can’t match.

On the other brain, however, legal departments crave all the IQ they can muster, so if author’s advice is to toggle back with the grey matter, to dumb down and not stick out, to think in second gear, I disagree completely. You don’t have to be a boor if you lots between the ears and use it. It’s what lawyers ought to do and race with. Other people’s insecurities or inabilities deserve compassion but that doesn’t mean to handicap a thoroughbred mind.

Research into what people feel is a just outcome suggests that people are concerned not only with the perceived fairness of the outcome in a particular situation, but also with the perceived fairness of the process that determined the outcome. These two concerns are referred to as distributive and procedural justice, respectively. This distinction and terminology comes from the Acad. of Mgt. Rev., Aug. 1996, at 1041, and both apply to law departments.

For example, law firms that compete for work with proposals, questions, and presentations obviously would like to be selected. Even if they are not selected (a manifestly unfair outcome!), however, they care whether the procedural treatment of them was satisfactory. As another example, only one person can be promoted to an opening in a law department, and that promotion can trigger disagreement with the outcome, the manner, or both of the decision.

Amartya Sen, Nobel Laureate in Economics, explains in The Idea of Justice (Harvard Univ. 2009) at 6-7 et seq., the difference between what he calls “transcendental institutionalism” and “realization-focused comparison.” Fancy words from a philosopher, but they boil down to the difference between describing ideal justice (or any aspect of the world) and the actual availability and manifestations of justice.

As Sen quips elsewhere, all summaries are acts of barbarism, so pardon me but my meager summary of this dense idea comes to this. Much writing about law department management falls into Sen’s first category, grand statements of ideals: development of the full person, stewardship of corporate funds, deployment of knowledge, delegation of work, management of law firms, alignment with clients, investment in technology, and other chimera of general counsel. They are less descriptions than dreams, less what actually goes on in the trenches than what generals imagine as they move pieces on maps.

Instead, favor Sen’s framework, which looks at actual decisions, pragmatic management tools, feasible achievements, and the nitty-gritty of what in fact takes place. We should study changes over time, such as how Sen investigates how justice is made more widely available, rather than some heavenly end-state of perfect law department management. It is easy to extol the unattainable; it is hard to stand on the ground and deal with the modest but achievable.

Quite fittingly, just after I wrote about software that shields users from interruptions like email, instant messaging, and online networks, I was distracted by an article in Wired, June 2010 at 116. The article compellingly argues that the cognitive effects of information overload and interruption from the Internet cause significant problems in concentration, retention and processing.

The author clobbers hypertext reading. Many studies show that we read hypertext material (blog posts?) more slowly and with less absorption than straight text. He shows that our small working memories cannot handle the “cognitive load” dumped on us by constant messages from inboxes, popups, the allures of Facebook, and the incessant din of Twitter. We read differently online, more skimming and less thought. We bounce rapidly between screens, which imposes “switching costs” as we gear up for one task and then power down and gear up for another. The Internet showers us with candy for the brain, but leaves us under-nourished for thoughtfulness.

“We willingly accept the loss of concentration and focus, the fragmentation of our attention, and the thinning of our thoughts in return for the wealth of compelling, or at least diverting, information we receive.” Multi-tasking is but one of the deleterious effects (See my post of Aug. 26, 2009: trying to do too many things at once with 8 references and 1 metapost.).

“Contrary to popular belief, performance is not determined solely by the nature, scale and disposition of resources, important though they may be.” Instead, argues an article by three Bain partners in the Harvard Bus. Rev., June 2010 at 54, it is “the organization’s ability to make and execute key decisions better and faster than competitors.” Don’t reorganize, they conclude, rethink decisions.

The Bain researchers surveyed executives and assessed decision quality (“whether decisions proved to be right more often than not”), decision speed (“whether decisions were made faster or slower than competitors”), decision yield (“how well decisions were translated into action”), and decision effort (“the time, trouble, and expense required for each key decision”).

Law departments, at their core, make decisions. That being the core competency, it is not structure that boosts performance but improved decision-making. From another perspective, information only has value in a law department to the extent it improves decisions. I have accumulated a trove of posts on decisions (See my post of Feb. 16, 2008: decisions with 42 references; March 15, 2009: cognitive traps with 21 references; and June 17, 2009: decision tree software with 6 references.)

I look down on mere lists of reasons for or against something if the lister does not rank the reasons in some order, such as of their persuasiveness. It isn’t good enough to throw out a whole bunch of arguments that could range from trivial to determinative without the additional effort to prioritize them on some basis. Because of that bias – “tell me their order” – my catalogues of arguments almost always come in some sort of order of influence. But I may be misguided.

Amartya Sen, winner of the Nobel Prize in Economics, explains in his most recent book, The Idea of Justice (Harvard Univ. 2009) at 2, the expository procedure he calls “plural grounding.” When criticizing something, it recognizes “using a number of different lines of condemnation, without seeking an agreement on their relative merits.” It is quite permissible, Sen writes, to have a variety of criticisms (or supporting arguments from the positive side) “yet not agree on one particular ground as being the dominant reason for the diagnosis.”

If you oppose hourly billing, you might advance several reasons, but under plural grounding it is legitimate to recognize that two or more of them stand on equal footing. My mind does not tend in that direction, but I do believe most values are incommensurable so it makes sense that some arguments (ultimately, value based) are likewise not rankable against each other.

With my most recent collection of posts about novel approaches to management issues, I have reached the point where my metaposts deserve to be pulled together into a hyperpost. Well-run legal departments constantly change for the better, even though the improvements (aka innovations) are mostly at the margins, modest, not the stuff of awards from Corporate Counsel. That said, a steady pace of moving the needle of processes and practices results over time in a top-flight department.

Brainstorming (See my post of Dec. 31, 2008: brainstorming with 5 references.).

Creativity (See my post of Oct. 29, 2006: creativity with 11 references.).

What’s new and shiny catches my eye, even though I believe that tortoise-like incremental improvements hold more promise for legal departments than do hare-racing radical changes. I also believe that opportunities to do something new, even if small potatoes, surround around everyone in a law department, all the time.

Many recent posts here build on previous collections and add to the composite picture of innovation (See my post of Oct. 19, 2009: advantages of a second mover; Nov. 25, 2009 #2: path dependency and innovation; Jan. 12, 2010: some want to keep their innovations quiet; Jan. 19, 2010: Gatehouse Bank and its new service line; Feb. 1, 2010: European general counsel do not push their firms for new software; Feb. 22, 2010: three new ideas from European law departments on fees of firms; March 8, 2010: law department benchmarks and five innovations; March 23, 2010: three modes of imitation; April 28, 2010 #1: Dell’s web portal wins award; and May 21, 2010: positive deviance.).

An article about stability and change in an organization, and specifically about how those two concepts are a duality not a dualism, explains how “mindfulness” is one of three ways variability enables stability. Writing in the Acad. Mgt. Rev., April 2010 at 210, the author runs through a list of ways organizations can test new ideas without risking catastrophic failures. Legal departments have years to go before they embrace these ideas, but let’s at least publish them for posterity.

Progressive organizations “experiment cognitively and vicariously using offline mental processes, counterfactual thinking, contingency plans and drills, after-action reviews, and learning from others’ failures” (citations omitted).

The mind boggles: “offline mental processes” – presumably something more dynamic than daydreaming. Counterfactuals are usually thought of as historical “what ifs,” such as “what if Oswald had missed Kennedy?” For a law department, “What if we had incorporated that subsidiary in Texas?” Contingency plans could cover such possibilities as the heart attack of a veteran lawyer or the implosion of a key law firm. After-action reviews I have covered (See my post of April 27, 2010: post mortems with 7 references.) whereas opportunities to learn from others’ failures happens all the time in the law (aka court decisions).

Hundreds of management practices thrive in the ecosystem that is legal departments. Some of them stay local, others take root everywhere. Academics refer to the spread of a management practice as “diffusion.” A thoughtful article in the Acad. Mgt. Rev., Jan. 2010 at 67-92, frames an understanding of diffusion.

Take one practice, to require budgets for all matters assigned to outside counsel. No one knows which general counsel first mandated that practice, and indeed it probably had multiple, simultaneous inventors. Thereafter, other general counsel heard about the new idea and sometimes adopted it to varying degrees.

As to the degrees of adoption, the authors explain the notions of fidelity and extensiveness. An adopting law department might faithfully reproduce the practices of the first (high fidelity) or might just incorporate the forms used (lower fidelity); it might apply such a budgeting regime across the entire portfolio of matters handled outside (extensiveness) or just in certain legal areas (lower extensiveness). Further on the degree of adoption, the authors posit that practices are adapted due to what they call technical fit, cultural fit and political fit.