Articles Posted in Thinking

If a general counsel thinks that early case assessment is hogwash, but his counterpart at his company’s biggest competitor praises it and offers proof, guess what the skeptic feels and does? People feel uncomfortable when their beliefs face a challenge, and they typically react by trying to ease the discomfort. The situation is one that psychologists term “cognitive dissonance.”

According to a website of Ithaca college, dissonance increases as the degree of discrepancy between the held belief and the challenging belief increases. The harder it is to square your beliefs with the opposition to it, there more there is cognitive dissonance.

Second, dissonance increases as the number of challenging ideas increases. Bombarded by opposing views, the general counsel feels more cognitive dissonance. “Third, dissonance is inversely proportional to the number of consonant cognitions held by an individual. Fourth, the relative weights given to the consonant and dissonant cognitions may be adjusted by their importance in the mind of the individual.” In other words, the stronger the belief we hold, the less cognitive dissonance gnaws at us; finally, we can game our own minds by backsliding or jutting out our jaws.

In the words of Jeffrey Pfeffer and Robert I. Sutton, Hard Facts, Dangerous Half-Truths & Total Nonsense: Profiting from Evidence-Based Management (Harvard Bus. School Press 2006) at 191, years of research into organizational climates have routinely found that “60% to 75% of the employees in any organization … report that the worst or most stressful part of their job is their immediate supervisor.” That quote set me to thinking about three general counsel I have consulted to who were at least in part bad managers.

One was too busy and too disorganized to communicate effectively with his reports. Another was heedless of the inconvenience he caused others, with meetings called on a moment’s notice or cancelled at the last moment. And he rethought everything people had done, starting from scratch. A third did not care if he was liked or not and was a bully. All were too sure of themselves, too unaware of how their department staff viewed them, and too unpredictable.

Collective intelligence is a fascinating notion. When many people weigh in with a view, especially if they put money on their positions, the market value of an outcome often predicts very accurately the actual result. According to Inkling Markets “Prediction markets allow a group of people to express an opinion over a period of time about the probability of an event occurring. A question is posed and people buy and sell shares in stocks representing possible answers to that question. The highest priced stock at the end of a period of time is the group’s prediction.”

The company’s Inkling software allows people to create such “markets” of ideas and trade on the likelihood of which ones will win or lose. According to Business Week’s Inside Innovation, March 2007 at 2, the software not only allows employees to put their own ideas on the faux market but also makes it easier to pay people in play or real dollars depending on the outcome of the event.

Law departments might sample this capability. A general counsel, for example, might institute a 360° appraisal process, but allow members of the law department to trade on an internal market based on their estimation of the likelihood of it making a difference (See my post of Feb. 16, 2006 on so-called prediction markets.).

Cognitive scientists define two sorts of knowledge, declarative and procedural, according to Arthur I. Miller, Insights of Genius: Imagery and Creativity in Science and Art (Springer-Verlag 1996) at 271. Declarative knowledge refers to static, fact-like representations that serve as innate structures and can be propositional or imagistic. An in-house lawyer who knows that Paragraph 14(a)(3) of a contract governs choice of law questions exhibits declarative knowledge. .

Declarative knowledge is about facts and things; it is operated on by processes, which is the domain of procedural knowledge. How to give notice to the other party under the contract would be in our example a counterpart procedural piece of knowledge. The distinction between declarative and procedural knowledge is akin to the difference between knowing a fact and knowing how to do something. Knowledge management efforts and training in law departments should appreciate the difference.

According to the “under-determination thesis” there can be an infinite number of scientific theories to describe any set of experimental data. Arthur I. Miller, Insights of Genius: Imagery and Creativity in Science and Art (Springer-Verlag 1996) at xii. This esoteric idea probably means that there could be an infinite number of explanations for any set of benchmarking data.

Point two. “All data, regardless of their source, can be discussed and evaluated only within a framework of knowledge. Philosophers refer to this observational situation as the ‘theory-ladeness’ of data” (at 12). Miller writes later, “There is no theory-neutral language with which to describe observations. Theory and data are necessarily intertwined, starting at the point where we even select what to observe.” I take this point to be that no once can pick out, let alone describe, something about a law department’s operations without being directed, knowingly or unknowingly, by some underlying construct of what’s important or some value set – a theory (See my posts of May 31, 2006 about how values underlie all management decisions; and Sept. 29, 2006 on some concepts from philosophy as they apply to law department management.)

Long and careful deliberation can be ineffectual, because the conscious mind has a very limited processing capacity. “People who mull over their decisions typically get the relative importance of the various pros and cons very wrong.” Research reported in the Harvard Bus.Rev., Vol. 85, Feb. 2007 at 30, discloses that extensive unconscious thought, after a period of focus, can make intuition more reliable than other ways to decide.

Studies conducted by a professor of psychology in the Netherlands a.dijksterhuis@psych.ru.nl show the superiority of immersing yourself for a period of time and then letting your cerebral processes on their own chew over the material. That approach is better than making a choice immediately or thinking diligently about the decision and then taking it. When people let their unconscious ponder, “Their decisions were better from a normative perspective (more rationally justifiable), from a subjective perspective (more likely to produce post-choice satisfaction), and from an objective perspective (more accurate).” So, lawyers should cogitate a while, then sleep on it.

“Creativity,” the subject of several forays on this blog, is a tough term to define. Fortunately, an article by Angela Stevens, “An Examination of Job Satisfaction and Creative Work Environments, OD Practitioner, Vol. 38, No. 3 2006 at 36, cites an expert’s definition (Theresa Amabile): “business creativity is an idea that is “original, useful and actionable” and it is “the first step in innovation.” A good start, but my personal view is that anytime a law department does something new for itself, that is just as good as something done that no one has attempted before.

If lawyers inside and outside are so smart, why aren’t they more creative? My article, published in Legal Times, Jan. 22, 2007, peels back some of the reasons why innovation comes so hard.

Another post explains the modest influence leaders have on the performance of organizations and teams (See my post of Jan. 14, 2007 calling leadership into question). Even those general counsel who want to lead are anchored by the deadweight of many constraints.

The constraints on a general counsel include the CEO [I have had at least three CEO’s refuse to let the GC hire a consultant]; the characteristics of the company’s industry, the business model of the company (See my post of Dec. 17, 2006 on ADVO and its solo GC), the aptitude of the law department’s members, powerful client executives, other staff groups (See my post of Dec. 7, 2005 about interactions with Human Resources, Finance, Information Technology, and Facilities.), regulators, and sometimes overweening primary law firms (See my post of Dec. 6, 2006 on influential law firms.).

We like to think the top lawyer is in charge, and give that person credit or blame (See my post of May 14, 2006 on the Fundamental Attribution Error.) but the reality is more complicated. Constraints on freedom of management are everywhere.

A classic book, Groupthink by Irving Janis, studied the US Cabinet-level decision-making before the failed Bay of Pigs invasion. “Groupthink” has come to summarize a congeries of characteristics that lead to bad decisions. Meetings of legal leadership teams can suffer from groupthink. These maladies include “a premature sense of ostensible unanimity, suppression of personal doubts and of expression of contrary views, and the group leader … guiding the discussion in such a way as to minimize disagreement.”

This summary of groupthink comes from Jared Diamond, Collapse: How Societies Choose to Fail or Succeed (Penguin Books 2005) at 439. Diamond recommends more productive decision-making such as “ordering participants to think skeptically, allowing discussion to be freewheeling, having some groups meet separately, and occasionally [the leader] leaving the room to avoid his overly influencing the discussion himself.”

Good ideas, all, for law departments that don’t want to become decision lemmings (See my post of Dec. 8, 2006 about the general counsel’s chilling effect.).

Law is cerebral, and many people don’t question the common assumption that brainier lawyers do better. Whether that is generally true, I at least have always thought that a person’s IQ is an invariant figure. Determined by what you are born with and what relatively early experiences you have, IQ thereafter remains fixed.

Then I read in Jeffrey Pfeffer and Robert I. Sutton, Hard Facts, Dangerous Half-Truths & Total Nonsense: Profiting from Evidence-Based Management (Harvard Bus. School Press 2006) at 93 that “even allegedly inherited abilities – like IQ and other ‘smartness’ measures – improve markedly and continuously when people work hard, have good coaching, and believe they will keep getting better” (italics in original).

A lawyer becomes accomplished by dint of disciplined effort over time, with instructors, where the lawyer has faith that his or her cognitive abilities will improve (See my post of Nov. 6, 2006 on effortful study.). We can boost our IQs!