Articles Posted in Thinking

It has been a long time since I assembled the posts on this blog about creativity (See my post of Oct. 29, 2006: creativity with 11 references.). The topic is too important for comments about it to lie dispersed and unappreciated so let’s see what has been said since then.

Several have concerned law firms and their creativity or lack of creativity (See my post of Feb. 11, 2007: lack of creativity by law firms; March 11, 2007: fixed-fee arrangements haven’t spurred creativity in firms; July 28, 2007: ranking of law firms as to creativity attribute; and July 19, 2007: creativity of outside counsel as a high-ranking attribute in selection.).

Other posts add various views on creative lawyers or techniques to increase creativity (See my post of Feb. 16, 2006: smart lawyers but who aren’t inventive; Dec. 31, 2008: “systematic inventive thinking”; April 9, 2009 #4: E/R/A approach; July 16, 2009: misguided elevation of creativity over effectiveness; Nov. 6, 2007 execution matters more than innovation; Jan. 14, 2007 #1: two references in books about creativity; Dec. 3, 2007 #2: law school with center for creative problem solving.). Examples of creative thinking crop up (See my post of May 3, 2007: think outside the bun for RFPs; and May 28, 2007: Addelshaw Goddard and online TV.).

An article in Asian-Counsel, e-edition, Vol. 7, July/Aug. at 18, gives advice to in-house attorneys who encounter a legal question or task that is unfamiliar to them. The three choices are cleverly summarized:

“Such in-house counsel generally have three options available to them: finding someone else to do the work (the “trade-off”); farming out the situation to external counsel (the “farm-off”); or simply ignoring the situation (the “brush-off”). Put differently, unless you dive in and learn something about the issue, you can delegate, instruct, or pray.

The technique of creating sets of realistic conditions, called scenarios, and thinking through their implications can significantly help managers prepare for the future. I have written previously about scenario applications (See my post of March 25, 2005: case studies of risks; Dec. 9, 2005: scenario planning for law departments; Dec. 20, 2005: real-options analysis; Jan. 4, 2006: intelligent agents; Feb. 1, 2006 #1: Herman Kahn and the origins of scenarios; April 1, 2007: story-telling, aka scenario building; Nov. 8, 2007: bonuses for law firms; April 22, 2008: limits on quantitative case analysis; and July 9, 2009: budget scenarios instead of single figures.).

Decision-analysis software and techniques complement scenarios (See my post of May 15, 2005: Monte Carlo simulations; Oct. 24, 2005: decision analysis and Bruce Beron and Marc Victor; Jan. 17, 2006: other aspects of decision trees; June 18, 2007: belief nets as an improvement on decision trees; Feb. 8, 2006: a step to prepare for mediation; April 2, 2006: Predix; April 22, 2008: limitations on quantitative analysis of litigation; Feb. 22, 2009: a simple explanation of decision trees; and June 17, 2009: Jacob Ruytenbeek’s decision-tree software.).

In his book, David Warsh, The Idea of Economic Complexity (Penguin Books, 1984) set me to thinking about omnipresent words managers in legal departments toss off that, curiously, lack clear definitions. Four of those vital but vague words include complexity, risk, quality, and value. Like “wicked problems” (See my post of May 28, 2009: definition of wicked problems.) and intractable managerial challenges, these value-based, often subjective words will always be murky (See my post of Sept. 9, 2008: intractable problem of clients’ appropriate use of in-house lawyers; and June 24, 2007: intractable of career paths.). No one will ever conclusively define these terms at an operational level.

As to complexity, Warsh bases economic complexity on the number of different jobs in an economy and the manner of their interdependence. Borrowing his construct, the legal complexity of a matter may depend on the number of different legal issues and risks involved and the degree of interdependence among those issues and risks (See my post of Dec. 27, 2008: complexity of legal practice with 20 references.).

Legal risk has to do with uncertainty about what might go wrong that better legal counsel might have avoided (See my post of Aug. 17, 2009: controlling legal risks with 13 references and 2 metaposts.).

Maybe because so many readers of this blog are silent, their circumstances and ideas mute to me, I appreciate ideas for how to let people safely express themselves (See my post of Feb. 18, 2009: ten suggestions for how to hear from everyone in a group; and Feb. 1, 2006: how to reduce the chilling effect.).

One tool is anonymous voting software (See my post of March 12, 2006: electronic voting; and April 18, 2005: voting software.). I wrote an article about voting software –>

Another set of tools rely on written comments during meetings (See my post of March 23, 2009: stepladder technique; April 6, 2009: brain-writing technique for gathering ideas; March 15, 2009: recipe cards with anonymous comments; and April 27, 2009: eleven suggestions for brainstorming.).

In my quest to create the OED (Online Explanations and Definitions) for legal department managers, I have made a decent start. This blog has defined upwards of 90 terms. I have compiled them, for anyone who emails me and asks for a copy. Meanwhile, here are 11 more that recently entered the general counsel’s OED.

1. burn rate (See my post of May 3, 2009: monthly expenditures on a matters.);
2. client vs customer (See my post of March 31, 2009: terms client or customer.);

Here is a mashup of ideas: cash rewards for cost saving ideas and a tournament to honor good ideas. MIT Sloan Mgt. Rev., Vol. 50, Summer 2009 at 17, reviews a book about innovation tournaments. The book explains a method to encourage lots of ideas for how to reduce costs or increase productivity. In your department people would submit suggestions anonymously. You then would let members of your department vote for the few ideas that they support, and praise the winners, perhaps even with cash.

An example is at hand for a legal department A short reference in InsideCounsel, June 2009 at 60, describes the competition one general counsel began to spot $5,000 savers. Peter Wexler, the chief legal officer of Schneider Electric “issued a challenge to the entire global legal team: Figure out how to save the company $5,000 or find a new and innovative way to do something”(See my post of May 21, 2009: boost knowledge transfer with rewards and recognition.).

If an in-house lawyer asks a law firm for assistance, an important measure of that firm’s contribution should not be the degree of novelty of its solution. More telling measures are outcome and cost. Creativity, doing something new, is over-rated (See my post of Oct. 29, 2006: creativity with 11 references; and Dec. 16, 2005: innovation with 7 references.).

Much legal guidance or legal service break no ground, as it can take the path more traveled. Do what has worked and needs to be done, and do it efficiently. It is misguided to privilege innovation and adventurous difference. Not because lawyers are risk averse, but because for an experienced practitioner, the pattern and solution is evident and the way through is clear (See my post of March 27, 2009: pattern recognition.). Why deviate and experiment? Why look for and crow about a new wheel to be invented?

MIT Sloan Mgt. Rev., Vol. 50, Summer 2009 at 30-31, gives an example of Toyota Motor Corp.’s method to achieve operational learning. Called the A3, because it fits on one sheet of paper of that size, it typically has a sequence of boxes arrayed in a template. Inside the boxes the A3’s author completes the following: “(1) establish the business context and importance of a specific problem or issue; (2) describe the current conditions of the problem; (3) identify the desired outcome; (4) analyze the situation to establish causality; (5) propose countermeasures; (6) prescribe an action plan for getting it done; and (7) map out the follow-up process.”

The paper is a means to an end. “The ultimate goal of A3s is not just to solve the problem at hand, but to make the process of problem solving transparent and teachable in a manner that creates an organization full of thinking, learning problem solvers. In this way, the A3 management process powerfully embodies the essence of operational learning.”

A tool such as A3 and its associated discipline can help many in-house efforts to solve a problem. More important than the template is the mind set that keeps asking questions to get to root causes.

The more that people are centrally connected to their peers, the more they tend to overestimate the degree to which their judgments are in agreement. Social scientists call this the “false consensus effect.” So, for example, lawyers who report directly to the general counsel and who spend time together in weekly senior staff meeting exaggerate the illusion that they all agree on something. This warning from social psychologists comes from MIT Sloan Mgt. Rev., Vol. 50, Summer 2009 at 14.

The article explains that “people who are the center of social networks,” such as general counsel, are likely be even more susceptible to the false consensus effect because they “perceive themselves as being more in touch with the opinions of others than they really are.” The antidote is to discuss explicitly views that are assumed to be shared.