Articles Posted in Thinking

Claude Shannon, the father of information theory, calculated “that the information content of any event was proportional to the logarithm of its inverse probability of occurrence.” On the off chance that quote leaves you with any doubt, the Economist, April 24, 2010 at 82, says that it means “an unexpected, infrequent event contains much more information than a more regular happening.” If a class action has a one in one thousand chance of being certified, the logarithm of that chance’s inverse (1,000 is the inverse of 1/1,000) is 3. A one in five hundred case has a log of 2.69 so the rarer event has 11 percent more informational value, as that term was defined by Shannon.

We notice deviations from patterns because the oddity contains more “information.” We can learn more from the unusual than from a continued series of normals. Three examples suggest the range of this axiomatic proposition.

Power-law formulas tell us much because they push us to consider unlikely outcomes and enable us to frame their likelihood (See my post of July 25, 2005: bell curve compared to power-law functions; Nov.13, 2005: power laws and the ratios of litigation costs; May. 27, 2007: Zipf’s law; Feb. 24, 2009: explanation of power-law distributions; Feb. 24, 2009: power laws in law department management; and Sept. 27, 2009: my article on the esoterica of power laws.).

Marc Lauritsen’s new book, The Lawyer’s Guide to Working Smarter with Knowledge Tools (ABA 2010) at 64-65 lists several artificial intelligence topics. Those most applicable to law (not robotics, for example) pushed to me to find out which of them have a blog post here that discusses the topic (See my post of Jan. 28, 2007: take the very long view on legal AI.). Below are the legal-related ones.

1. Logic programming
2. Rule-based expert systems (See my post of March 27, 2005: software in England and Australia; March 24, 2005: document assembly hasn’t caught on; and Feb. 24, 2007: rules based document assembly.).

“The field of neuroeconomics was born out of the realization that the physical workings of the brain place limitations on the way we make decisions.” Gregory Berns, iconoclast: a neuroscientist reveals how to think differently (Harvard Bus. Press 2008) at 6. We all struggle with biases that undermine good decision-making. This blog has covered several snakes in the grass that distort human cognition (See my post of March 15, 2009: cognitive traps with 21 references.).

To counteract poisoned fangs, a few antidotes might save your decisions (See my post of Feb. 18, 2006: three thoughts on how to make better decisions; and Oct. 24, 2008: palliatives.).

1. Allow yourself time to mull over any important decision (See my post Feb. 20, 2007: sleep on it to make a good decision.).

Writing is a crucial skill of in-house lawyers (See my post of Feb. 5, 2009: writing with 6 references.). Software can analyze a person’s writing and suggest how to improve it. One common method describes a document in terms of the school level need to understand your prose. Seven tools that do exactly that are available on Readability.Info.

Not surprisingly, I directed the site to look at a recent patch of my posts. What follows are the explanations of the formulas that produced these scores, which I took from the website of Readability but shortened and edited.

The Kincaid Formula, developed for Navy training manuals, ranges in difficulty from 5.5 to 16.3. It is probably best applied to technical documents, much like mine are probably technical (The formula is 11.8*syllables/wds+0.39*wds/sentences-15.59.). My Kincaid was 13.5.

Michael Mauboussin, Think Twice: Harnessing the Power of Counterintuition (Harvard Bus. Press 2009) at 4-6, describes three particular delusions which stymie our efforts to reach good conclusions. We over-rate our own abilities, prospects, and influence, which makes us more difficult to reach objective decisions.

One delusion is the illusion of superiority whereby people have an unrealistically positive view of themselves. Sadly, the least capable often have the largest gaps between what they think they can do and what they are actually able to achieve. General counsel prick this illusion in almost every performance review they give.

A second is the illusion of optimism. “Most people see their future is brighter than that of others.” How many litigators in law firms foresee a thumping defeat? How many journeymen JDs admire themselves as up-and-coming CLOs?

Michael Mauboussin, Think Twice: Harnessing the Power of Counterintuition (Harvard Bus. Press 2009) at xix, counsels us not to overdo information gathering.

“Indeed, typical decision-makers allocate only 25 percent of their time to thinking about the problem properly and learning from experience. Most spend their time gathering information, which feels like progress and appears diligent to superiors, but information without context is falsely empowering. If you do not properly understand the challenges involved in your decision, this data will offer nothing to improve the accuracy of its decision and actually may create misplaced confidence.”

In-house counsel often want more facts before they make a call, we all want more facts. But Mauboussin’s point is solid: metathinking – how do I frame this decision and make it more effectively – increases the odds in favor of successful judgment more than continued data collection.

Thomas Davenport, in the Harvard Bus. Rev., Vol. 86, Nov. 2009 at 116, suggests that organizations can improve decision making in four steps. Put in terms of a legal department, they are:

1. “Managers should begin by listing the decisions that must be made and deciding which are most important.” So, in a major lawsuit or corporate transaction, identify which decisions need to be made. “Without prioritization, all decisions will be treated as equal – which probably means that the important ones won’t be analyzed with sufficient care.” This advice reminds me of a key part of setting an agenda for a meeting: allot time to topics in relation to their importance.

2. “[A]ssess the factors that go into each [decision].” So, the responsible in-house lawyer needs to decide who plays what role in major decisions (See my post of Nov. 23, 2008: RACI roles.). How often does the decision come up? What information do we have or need to be able to make the best decision under the circumstances? How well is the decision typically made (See my post of May 27, 2008: post mortems with 7 references.).

Someday soon, in-house counsel might wear an emotion-sensing system designed to help them keep a cool head when negotiating, litigating, or dealing with obnoxious people. The Rationalizer, still under development by Philips, consists of a bracelet that measures the wearer’s galvanic skin response. This response measures the electrical resistance of the skin that can be caused by various stimuli. Your skin knows when you are upset.

According to an article in the Economist, October 17, 2009 at 85, “the bracelet transmits its measurements to the ‘EmoBowl’, a saucer-like object which displays a moving light pattern to illustrate the user’s mood. If the person becomes emotionally aroused, the light pattern becomes more intense and turns from a soft yellow to orange.” If it reaches deep red, the lawyer should count to 10 and try to calm down. Such an obvious alarm will not do in plain view amidst a tense meeting, but more subtle reminders, such as a dial on the bracelet, presumably could alert the wearer to take a break.

This blog aspires to bring more understanding to the art of legal department management. To that end, I have tried to define relevant terms, sketch applicable concepts, and organize the 4,900 posts in ways useful to general counsel. The hill is steep, however, and I have wondered often whether the summit is attainable – something near comprehensive insight into how to run an effective corporate legal team.

A cluster of insights into this challenge comes from George A. Reisch, How the Cold War Transformed the Philosophy of Science (Cambridge Univ. Press 2005) at 28-30. Reisch summarizes views advocated by Otto Neurath, a 20th century philosopher of science. Neurath’s views feel correct to me, in truth profound and useful, so I summarize them very lightly and apply them to the managerial world of general counsel.

Platonic essence versus meaning holism. “Words and sentences gain meaning in virtue of connections to other words and sentences.” Our language does not draw on some extra-linguistic real world for meaning. No Platonic essence of a word or term exists; rather, language is socially constructed and words depend on other words for context. We can’t nail down in the abstract the meaning of a managerial idea expressed in words. None of the concepts central to general counsel regarding management clear, irrefragable, and precise (See my post of Feb. 1, 2009: ten most important concepts of management for GCs; and April 5, 2009: ten next most important concepts.).

A few offices nestled in law departments ooze the serene contemplativeness of a Japanese rock garden: calm, ordered, soothingly lit, an oasis in chaos. As you relax, you notice it isn’t incense burning, or the Monet poster, or even the indirect lighting with a tinted bulb, not even the lulling lava lamp, or the bowl of chocolates.

No, indeed, the quiet comes from the tiny waterfall in the corner, tinkling and pacifying. Water’s primeval lilt rivals music, which “has charms to soothe a savage breast.” The hint of flowing water washes over jangled nerves and like “sleep that knits up the ravell’d sleeve of care” provides “surcease from sorrow.” That burble helps “when to the sessions of sweet silent thought” we all sometimes yearn to slip.

The susurrus of a stream composes the mind and lets well up pleasure, like poetry (Jan. 3, 2008: no citations to poetry in these posts; and Aug. 31, 2009: a haiku on legal management.).