Articles Posted in Thinking

An author in Historically Speaking, Vol. 8, May/June 2007 at 10, admonishes us not to overly simplify complicated terms such as “religion” and “science.” “[T]hose who like to speak of the relations between science and religion need to be reminded how easily, how misleadingly, these become singularized, hypostatized terms, concealing a diversity of social practices among the sciences (plural) and the major faith traditions (plural)” (emphasis added).

The same admonition applies in the field of law department operations. Journalists, consultants, article-writers and speakers too easily lump together the unruly, irregular, and highly diverse practices of legal departments (plural). All the time they singularize the profusion of law departments. “Law departments are under intense cost pressures,” whereas actually some general counsel don’t know the meaning of budget while others lose their jobs over excessive costs.

Beyond that, most of us treat complicated social concepts, such as a “law department,” as if they were tangible and animate – we hypostatize the term: “Under intense cost pressure, law departments have countered with outside counsel guidelines.” The concept of an internal legal function becomes a golem. A complicated concept becomes corporeal.

Everyone who cares about innovation by lawyers should read the article in Cal. Mgt. Rev., Vol. 50, Fall 2007 at 174. It usefully and lucidly explains why innovation – “the combination of creativity and implementation” – by services providers differs from innovation by product providers. The latter get much more attention, but the former – services, which include law firms and law departments – account for most of the value created in our US economy. The three authors, one of whom is the Chief Knowledge Officer at Goldman Sachs and a former business school professor, draw on a case study of investment bankers, but their conclusions and recommendations apply well to lawyers.

They posit several cultural features of successful services innovators, which they describe as “fundamental enablers.” The authors then expand on five characteristics of service innovation, with many ideas that should stimulate managers of lawyers.

Law firms ought to take to heart the lessons of this article: innovation should be distributed throughout the firm; innovation is fluid and continuous; and innovation ties in closely to personnel practices and leadership. Law departments ought to recognize and encourage new thinking in the firms they use and, even more, should apply the same learning to their relations with their own work and clients.

Waiting to speak at a conference a fortnight ago, I looked around the room as a speaker offered her best and counted the number of attendees who were doing the “Blackberry prayer” – heads bowed, brows furrowed, thumbs tapping or eyes reading. Toss in a few others who had laptops in wireless mode and I had the sense that at least a third of those in the room were elsewhere, in their own world of electronic communion.

The speaker may be gifted or garbled; the topic may be mesmerizing or a yawn; the day may just started or the afternoon siesta may flag everyone. It doesn’t matter. Almost nothing interests us like messages that buzz our personal digital assistant (PDA), which means that no speaker can compete against the come-hither pull of the electronic tether (See my posts of April 3, 2005 on productivity increases due to communication devices; but also July 14, 2005 on diminished productivity; Oct. 19, 2005 on telecommuters and PDAs; April 23, 2006 and the disappearance of letters and memos; and June 5, 2006 on stress that is elevated by PDAs.).

These addictive, ubiquitous devices have eviscerated our ability to listen attentively for periods of time, let alone to even moderately complex remarks. Group meetings, and even one-on-ones, break down against the irresistible onslaught of the Siren devices. Call me a Luddite, but I don’t like the excessive attention paid to PDAs.

An article in the NY Times, Nov. 24, 2007 at C5, made some disturbing points about out attitudes toward our own mistakes. Here’s how I applied the observations to law departments.

Nearly all lawyers have somewhere along the educational line been told they are smart. People who view themselves as smart, according to research described in the article, and who “believe that intelligence is fixed and cannot change tend to avoid taking chances that may lead to errors.” If true, that finding explains some of the risk aversion common to lawyers (See my post of June 30, 2007 about risk attitudes among lawyers and four references cited.).

By contrast, people who are praised not for their brains but for their effort, for how hard they struggle and how much they learn from their mistakes, are game to take on more challenging tasks. If trying hard gets rewarded more than shining intellectually, the effortful people take more risks. Unfortunately, where intellectual elitism rules, as in big-firm law, no one boast about a hard slog and slips along the way.

By contributing author Jane DiRenzo Pigott, R3 Group LLC

I was at an event recently where attorneys from any different firms were in attendance. One of the panels presented had general counsel from four companies talking about client relationship management and business acquisition. During the Q&A session at the end, one attorney in the audience asked the panel how she should approach business development as an attorney who worked a reduced schedule. The unanimous response from the panel was that she shouldn’t mention the fact that she worked part time. The crowd verbally expressed its disapproval of that response.

Why wasn’t that the “right” answer? I hope that it wasn’t due to some entitlement: if a person works a reduced schedule then that obligates clients and potential clients to “respect” that schedule. I also hope it wasn’t due to authenticity issues: a reduced schedule only works if I can tell everyone I meet professionally that I work a reduced schedule. Neither of those rationales makes sense to me.

Since my article on lawyers and creativity was published in the Legal Times, Vol. 30, Jan. 22, 2007, I have written a few posts that supplement it. Trying to role model creativity, my thought is to keep the article ever-green by publishing this mashup of articles and blog posts – introducing a neologism for this, the world’s first artiblog.

Seven posts on this blog have extended the article’s coverage of creativity in the sphere of law-department management (See my posts of Feb. 11, 2007 on the lack of creativity by law firms; Feb. 16, 2006 on smart lawyers but who aren’t inventive; March 11, 2007 about fixed-fee arrangements; May 3, 2007 about thinking outside the bun for RFPs; May 28, 2007 on Addelshaw Goddard and online TV; July 19, 2007 on creativity of outside counsel as a high-ranking attribute in selection; and Nov. 6, 2007 on execution mattering more than innovation.).

Research by Michel Tuan Pham, a professor at Columbia Business School, is discussed in Columbia Business School Ideas , Nov. 15, 2007. His findings jibe with other findings that lawyers, in comparison to the general public, tend to be skeptical, risk averse, cautious and worried.

“Generally, sad moods tend to promote better analytical thinking. In addition, while both good and bad intense moods can reduce overall reasoning abilities, intense emotional states may have played an evolutionary role in helping people make quick assessments in do-or-die situations. Good moods, which enable creativity but trigger less rigorous analysis, promote more contemplative thinking and explorative behaviors during less stressful interludes.” Sadly, close legal reasoning may happen better when a lawyer feels despondent.

“There is usually a very good rational basis for our emotions,” says Pham. “We should keep in mind that they mostly help us.” You may be blue, but your legal reasoning is red hot.

An article in the Harv. Bus. Rev., Vol. 85, Nov. 2007 at 69, proposes a framework for leadership and decision making. The framework consists of five contexts defined by the nature of the relationship between cause and effect and the teachings of complexity science. I will skim the surface of the article with a brief summary skewed toward law departments.

The easiest situation, a “simple context,” is the realm of “known knowns” and single right answers, such as when to send cease & desist letters or how to file a security interest. Here, best practices apply. The legal work is largely suitable for paralegals.

In a “complicated context” there may be multiple right answers but the links between cause and effect are clear to experts. It is the realm of “known unknowns.” For example, how to prepare a patent application is a complicated context, one where the legal work is suitable to junior lawyers who have some experience or even expertise.

Cognitive theory can explain several of our mental predelictions and help us avoid some that are deleterious. A handful of examples come from an article by Michael Maslanka, in the Texas Lawyer, March 28, 2007. Maslanka explains the fundamental attribution bias and how easy it is for us to be credulous, since we find it easy to believe but difficult to doubt (See my post of May 14, 2006 on the fundamental attribution error.). Perhaps we should call this the Easy Sucker Bias. He also explains confirmation bias: “Our brains latch onto a belief and defend it by accepting only facts supporting it, or rejecting it or – even worse – distorting contrary information.” (See my post of April 17, 2006 on this human proclivity.)

A new point, however, is the one I want to highlight. Maslanka links our genetic hardwiring to the way we tend to speak broadly and with conclusions. That cognitive bias toward shorthand thinking might have helped us survive but it isn’t what decision makers should do generally. A general counsel neds to cut through generalizations and pay attention to specific facts.

Cognitive errors by professionals confound our notion that those highly trained specialists – doctors, architects, scientists, experienced general counsel – reason rationally on a bedrock of solid beliefs. They don’t – none of us do – so we had best be on our guard against cracks and gaps in the surface of thought. A review in the NY Times Book Rev., April 1, 2007, at 11, of a book about how doctors think ticks off a number of tremors that shake medical rationality. One is called “diagnosis momentum.”

Once a doctor puts a name to a condition, that diagnosis “is passed on to other doctors with ever-increasing conviction.” Likewise, once a situation in a law department gets labeled, especially by the senior lawyer, the diagnosis tends to stick, and indeed gets reinforced.

The cure – or at least ameliorative – lies along the lines of questioning one’s own certainties, playing devils advocate, and remaining open to new views (See my post of Sept. 4, 2006 on devil’s advocates and other techniques to promote creativity; and June 12, 2005 on underlying assumptions of law departments.).