Articles Posted in Thinking

“A story – even a one-liner – is ultimately more persuasive than facts.” From the managing partner of a law firm as part of his advice in Texas Lawyer, Oct. 11, 2006, that assertion rankles me. As a believer in benchmarks and statistical analysis, I dwell in the camp of counts and quantification. I reject the notion that “decisions based on a story are better than decisions based on facts.”

Stories have emotional power, without a doubt, and can capture values and inspire visions. People like and remember vignettes better than ratios and percentages. But if Board members, C-suiters and general counsel believe that anecdotes and apocrypha bring decisional clarity, I part company (See my post of Nov. 24, 2005 on the bromide, can’t manage what can’t measure.). Facts persuade certain kinds of thinkers; stories sway others; neither rhetoric is privileged.

Managers can think more clearly and decide more effectively to the extent they can differentiate more ideas. A stockpile of ideas, expressed by a richness of words and concepts well understood, gives clarity, nuance and balance to a person’s thinking. That words differ from concepts has been commented on here (See my posts of June 13, 2006; and Nov. 26, 2006 on memes.). Managers’ thoughts are limited by their vocabulary.

This blog has offered many explicit definitions (See my post of Nov. 26, 2006 and references cited.). Implicit definitions or examples also crop up (See my post of April 9, 2006 on contract staff versus temporary staff.). Other posts recognize either the difficulty of a definition or the current lack of definition of terms important in legal department management and consulting (See my posts of Sept. 4, 2005 on “minority counsel;” Sept. 13, 2006 on “management attorney;” and Aug. 21, 2005 on the need for a generally-accepted definition of “significant outside counsel.”). Moreover, a gaggle of terms have yet to be defined on this blog: benefits, culture, evaluations of lawyers, ex pat, general counsel, intranet site, invoice review; pay grade structure, reporting, and total compensation are some that occur to me.

General counsel, during discussions of complex topics at staff meetings with their direct reports, produce from time to time a chilling effect. Once the top lawyer takes a position, everyone else typically scrambles to support it or freezes into silence (See my post of Jan. 17, 2006 on passive-aggressive behavior.). Although some techniques help thaw the chill (See my post of Feb.1, 2006 with two.), the sina qua non is sensitivity by the general counsel to the conversation-stopping risk.

Surely one of the hardest lessons is to listen for other views before stating one’s own, yet even harder to become adept at encouraging different points of view. Any action of importance has two or more sides that can be pressed, so unanimous agreement without dissent or question likely means that someone is suppressing doubts.

Along with deferred commentary and provoking some controversy and alternatives (See my post of Jan. 10, 2006 on methods to increase creativity.) the alert general counsel will view the discussion as an intellectual debate, not a political or personal dogfight. This sound advice comes from Strat. + Bus., Winter 2006, Issue 45 at 160.

If a brainstorming session falls short of its participants’ goals, “most often it is because someone hijacks the topic at hand, tries to prove everyone else wrong, works to impress the superiors who are present, or just plain blathers for his own enjoyment,” according to the Wall St.J., June 13, 2006 at B1.

If your law department chooses to conduct a brainstorming session, apply these four lessons. Require the participants to write down their ideas privately and bring them to the session. Have someone collect the ideas and read them without attribution, so that evaluations of the ideas are not influenced by the idea person’s rank. Research referred to in the article found that group brainstormers perform at about half the level of the same people who brainstorm alone. as measured by the number and quality of ideas generated.

Third, hire an outside facilitator (See my post of Oct. 30, 2006 for this suggestion and two other points: have rules and push participants to prepare ahead of time.). A fourth step asks the participants to mull over afterwards what they learned during the brainstorming session and share their thoughts (See my posts of Nov. 28, 2005 on the advantages of mind-mapping software during brainstorming sessions; and Dec. 9, 2005 on the related Delphi technique.).

Many studies have shown that people welcome choices, but not too many. A proliferation of alternatives slows people down and frustrates them. As summarized in the Fin. Times, Jan. 6, 2006 at 7, “as the number of choices increases so does the perceived risk of making a bad choice — prompting people to refuse to make one at all.” Notice that panels of law firms tend to having only five or six firms (See my posts of April 18, 2005 on the term; Nov. 13, 2005 on four firms at RHM; Feb. 15, 2006 on two more examples; and March 30, 2006 on Societe General’s.).

Or when counselors give clients choices, two or three is better than seven or eight, especially if each branch has a host of sub-choices. People can’t process that degree of cognitive complexity.

The psychology of choice also brings into play the quirk of “adaptation,” in which the pleasure from having made a good decision quickly evaporates. Research has shown that “people consistently underestimate how soon the feel-good factor wears off.” When a department carefully selects a case management system from the many on offer, for example, the honeymoon may quickly end (See my post of May 16, 2006 on disappointments with such software.).

“The preponderance of psychological evidence indicates that experts are made, not born.” This is the conclusion from Scientific Am., Vol. 295, Aug. 2006 at 64, 71. The article explains how very accomplished thinkers have at the mental ready more “chunked” knowledge – knowledge stored efficiently as patterns and templates – than do lesser thinkers. It is not analysis that makes certain chess players and doctors stand out, but this richer store of structured knowledge (See my post of June 12 , 2005 on Herbert Simon’s 10-year rule on expertise; and July 15, 2005 on how to increase “deep smarts.”).

More than intellectual firepower, to achieve structured knowledge the key is “effortful study” continued over time. It is effortful study when you push yourself to practice, deliberately learn, and try to get better. “Experts-in-training keep the lid of their mind’s box open all the time, so that they can inspect, criticize and augment its contents and thereby encourage the standards set by leaders in their fields.” Each and every in-house counsel can pursue effortful study in their field.

More important than innate talent, support for which as the cause of expertise lacks hard evidence, is motivation. Hence, if you want to develop expertise in an area of law, code patterns in your mind, study with diligent purpose over time, and crave the success that expertise will eventually bring.

Research reported in the Economist, Oct. 14, 2006 at 86, may explain why in-house lawyers who take part in pro bono programs feel good about it. The researchers used functional magnetic resonance imaging (FMRI) to map brain activity when volunteers decided to donate money.

The part of the brain that activated happened to be the brain’s reward center – the mesolimbic pathway – “responsible for doling out the dopamine-mediated euphoria associated with sex, money, food and drugs.” Thus the warm glow that pro bono service lights may have a neurological and physiological basis (See my post of Feb. 12, 2006 on the amygdala’s powers; May 30, 2006 on neuroscience and leadership; and Aug. 16, 2006 on another aspect of brain physiology.).

When you recall three instances of patent boutiques failing to handle litigation as well as do general litigation firms, inductive reasoning lets you conclude to use generalist litigation firms. When you know already that Ivy League graduates who clerked for the Supreme Court are smart, you use deductive reasoning when you hire one quickly. These forms of reasoning are common and commonly understood.

Less commonly, creative lawyers rely on a third type of reasoning: abductive reasoning, the logic of what might be. According to Fast Company, Oct. 2006 at 56, this is a form of intuitive, whole-brain creativity (See my post of Oct. 29, 2006 on ambivalency’s boost to creativity.).

Recent research suggests that ambivalent feelings — the simultaneous anxiety and excitement of starting a new project, say — enhance creativity. Assistant Professor Christina Ting Fong of the University of Washington business school set up situations where students felt different degrees of ambivalence. The students then took the Remote Associates Test, a commonly used measure of creativity. According to BusinessWeek, Oct. 30, 2006 at 16, those who felt ambivalent scored higher on creativity.

If novelty and nervousness sharpen, perhaps because an ambivalent state of mind broadens the mental resources drawn upon, in-house counsel who are under pressure and dealing with new legal issues have the most fertile circumstances for coming up with novel solutions.

Elsewhere this blog has dealt with creativity (See my posts of May 4, 2005 and the low regard by law departments of law firm creativity; July 21, 2005 on the low value departments place on law firm creativity; Oct.18, 2005 about lawyers not necessarily wanting more creative and demanding work; Oct. 30, 2005 #3 and some survey results on law firm creativity; Jan. 10, 2006 on methods to boost creativity; May 14, 2006 on personality attributes of inside lawyers; May 16, 2006 on right-brained creativity; June 15, 2006 on creativity in executives; Aug. 28, 2006 on Edward De Bono’s Green Hat thinking; Sept. 4, 2006 on methods to push creativity; and Oct. 6, 2006 about leadership.).

Software developers have staked claims to programs that can deduce what information is important to a user, based on what the user is doing, and deliver information or tools that help at that moment. According to the Economist, Sept. 23, 2006 at 24, “plenty of measures can tell you something about the user’s state of mind: keystrokes, how many windows are open and their content, whether the user is scrolling, the time of day, the contents of a desktop calendar” and more.

If so-called augmented-cognition software could pick the key concepts out of a document open on the lawyer’s computer (See my post of Feb. 19, 2006 on concept-search software), it could search in the background for relevant e-mails or precedent. If the software analyzed the last 50 incoming e-mails from other lawyers in the department, it could detect a pattern of cooperation and decide when to interrupt a lawyer more appropriately. If the software noticed that a lawyer delays opening e-mails from a certain user, it might filter them into a low-priority directory.

Futuristic? Absolutely. But once you start picturing the potential of augmented cognition, the possibilities for in-house counsel are exciting.