Articles Posted in Thinking

Modernism is out of date in terms of today’s law department design

A fad in the mid-20th century for rational design by an omniscient planner, as evidenced by Le Corbusier’s view that “a house is a machine for living in” and the elaborately laid-out but sterile cities of Canberra and Brasilia, went under the term “modernism.” Modernists would view a law department mechanically: organized and understood as a purely technical and economic means to a productive end, the rationally planned manufacture of good legal counsel efficiently and inexpensively. This thumbnail of modernism comes from John Kay, Obliquity: why our goals are best achieved indirectly (Profile Books 2010) at 4, 25, but I translated it to my single-minded interest.

Re-engineering, the now defunct notion of starting from scratch and building a logical, airtight system, has modernist overtones. Let’s reconfigure processes (and ignore people and culture). A law department that places too much stock in benchmarks and quantifiable performance objectives might fall prey to the unbalanced fixations of modernism (See my post of Dec. 26, 2010: Robert McNamara and over-reliance on quantification.).

The teleological fallacy improperly infers causes from outcomes. A good or bad outcome of an initiative by a general counsel does not derive, necessarily, from a good or bad cause, be it an idea, design or implementation. A loss at trial doesn’t mean the legal work done was shoddy. A patent granted doesn’t prove the application was well drafted and prosecuted. Outside counsel costs might rise even though a number of solid steps were taken to moderate those costs. The teleological error is to make inferences about the relationships between what happens and what was done before what happens.

“The illusion that we have more control over our lives than we possess, that we understand more about the world and the future than we do or can, is pervasive.” Along with the teleological mis-attribution, this depressing point is made by John Kay, Obliquity: why our goals are best achieved indirectly (Profile Books 2010) at 127. The delusion that we directly influence big effects on our lives teaches that we should experiment, we should take steps and study the results as best we can, we should be open to new ideas and to change course.

A letter to the editor of the ABA Journal, Aug. 2011 at 7, lambastes the deplorable writing of in-house lawyers. The writer teaches technical writing to corporate employees. He claims that “universally, the people I teach say that they understand all the points I make and try to write this way. Then comes the inevitable, scathing “but.”

“[B]ut that their documents become full of meaningless jargon, poor construction and passive voice after they go through their legal departments.”

For sure ceteris paribus which is a painey way that is complained of for the scions of the immortal bar de jure heretofore a force majeure of non aproprose.

To the degree managers don’t make distinctions between concepts, they lose some ability to understand and respond to what is happening. For that reason, value vocabulary – each new word sharpens just a bit one’s ability to discriminate between concepts. The truth is, I relish lumping and splitting: joining concepts that others might not have, such as network theory and client satisfaction, or separating concepts, such as ideas, beliefs, and knowledge. Let me take that trio and do some splitting.

An idea is an awareness that clarifies enough in your mind that you recognize its distinctiveness and can speak about it. “I just had an idea about how to push law firms to submit more realistic budgets.”

A belief is an idea that rests on and draws strength from your value system, even if the analytical evidence for it may be lacking. “I believe that law firms submit much too conservative budgets.”

Well-run legal departments should have goals that have cascaded from corporate headquarters. A mission statement announces some of the durable goals, others might vary from year to year. A practice in a law department is a means to achieve one or more of those goals. To illustrate, a goal is to manage outside counsel responsibly, practices in pursuit of it are legion. Or a transcendent goal might be to steward corporate funds well.

David Hume, the great empiricist philosopher believed that our wants and desires determine our ultimate goals, and the role of reason is limited to telling us how best to achieve those goals. Reason applies to means (practices), not ends (goals). Emotional and psychological needs fuel goals, whereas the thinking parts of our brains, ideally, choose the tactics and techniques to get their.

If corporate goals are set for law departments, if the trickle down from on high sets the objectives, then managers of law departments apply reason to select among the contending methods to achieve them.

Non-stop activity at work – meetings and conference calls end to end with no respite – wears people down. One reason proposed by sleep researchers is that “we oscillate every 90 minutes from higher to lower alertness.” An article in the New York Times, July 24, 2011 at BU8, likened the daylight rhythm to the 90-minute sleep cycles people pass through at night.

It’s as if our bodies ask us for a break approximately every 90 minutes. If we don’t, we rely on emergency sources of energy such as adrenalin, noradrenalin, and cortisol. “In this aroused fight-or-flight state, our prefrontal cortex, which helps us think reflectively and creatively, begins to shut down. We become more reactive, reflexive and impulsive.” Nothing that distinguishes a careful lawyer!

In-house lawyers, under stress and under water, need to recognize that a change of pace, a bit of relaxation, a nap even will help them be much more productive during the remainder of their cycles.

Logical positivism, a philosophical movement in the 1920’s and ‘30’s, held that a “proposition not reducible to a simple enunciation of fact can have no intelligible meaning.” The quote comes from Bruce Mazlish, The Riddle of History: the great speculators from Vico to Freud (Harper & Row 1966) at 204. The linguistic move in philosophy, which sometimes goes under the name of logical analysts or analytic philosophers, held that if words could not be clearly stated, defined, and subjected to measurement, then they degenerated into uselessness.

“Value,” “risk,” “quality” and “judgment” would have no intelligible meaning to a logical positivist. They convey something to all of us in an ordinary sense, but they fundamentally lack rigor and precision. If we only know it when we see it, to a logical positivist we do not know it and we can’t say anything credible about it (See my post of July 8, 2010: positivism’s perspectives on law department management.). We struggle to pin down these terms, and we always will.

A review in the Economist, July 2, 2011 at 74, of a book by William Rhodes, a prominent banker, picked up on Rhodes’ methods to bring a roomful of disparate interests to a consensus: “keeping people awake until they will agree to just about anything, for example, or forcing everyone at the table to state their positions on each issue.” Sleep deprivation doesn’t appeal to me as an effective method.

Nor do I think the ranking lawyer, often the general counsel, should state a position early on in a discussion. That can create a dampening effect on discussion, let alone opposition (See my post of Feb. 1, 2006: how to lessen peer pressure and the general counsel chill; Dec. 8, 2006: as a general counsel, encourage different viewpoints; April 17, 2007: silence at Town Halls; Jan. 4, 2009: electronic voting software helps surface difficult issues that are otherwise suppressed; Jan. 9, 2009: ideas are suppressed around a general counsel; July 14, 2009: the false consensus effect of intimidated subordinates; July 22, 2009: chill effect of dominance; and May 25, 2010: futility, not fear, stops people from speaking truth to power.).

As for insisting that everyone weigh in on an important decision, I like the idea but it can wind up to huge pressure and lots of me-tooism.

Many people may have heard about Ben Franklin’s T: to help reach a decision, list pros and cons and then cross off those that balance each other out (See my post of April 2, 2006 – Franklin T’s and other decision aids.). Some variations on it appear in Len Fisher, The Perfect Swarm: The science of complexity in everyday life (Basic Books 2009) at 143-145.

Fisher says that sometimes a simple tally of how many arguments you have listed for an action compared to how many against will suffice. If you do not know enough to weight the various arguments, just count and decide for the larger number. With what Fisher calls “level-wise tallying” you underline the factors in the pro and con columns that you think are particularly important. Then tally those decisive factors and go.

A heuristic is a simple rule or set of rules for making acceptable decisions from partial information or in a limited time span. People use heuristics all the time (See my post of Sept. 9, 2008: economics of information explains why we rely on heuristics; March 15, 2009: the affect heuristic, where preconceived value-judgments interfere with our assessment of costs and benefits.).

A rule of thumb means to many people the same thing as a heuristic – a rough guide to behavior or a decision. Many benchmark norms evolve into general decision criteria, such as one lawyer for each non-lawyer being about right. When I searched my accumulated 6,700 posts, I found many instances where I used “rule of thumb” (See my post of Sept. 13, 2005: 5% of external spend goes to vendors other than law firms; Aug. 24, 2005: three-quarters of law firms bill monthly for each matter; March 28, 2005: one lawyer and one paralegal at a firm per matter; July 16, 2005: 1-2 major firms per billion of revenue; Dec. 22, 2005: a billion dollar M&A deal requires a full-time lawyer; Feb. 9, 2006: one specialist for every two generalist lawyers; March 10, 2006: perhaps five hours inside for every 20 outside on a matter; Feb. 11, 2007: three primary firms per in-house lawyer; Nov. 20, 2007: global law department if it has 10+ locations outside HQ country; June 22, 2008: work 60 hours to charge clients 40; Feb. 7, 2009: e-discovery costs; Aug. 18, 2009: questionable rule of thumb on make-buy: the inside cost should be one-third of the outside cost; Sept. 22, 2009 #2: for panel selections approach no more firms than twice the number you expect to end up with; Jan. 20, 2010: for presentations by law firms – 1/3rd talk, 2/3rd answer questions; March 24, 2010: fees paid to law firms that might justify an internal hire; April 20, 2010: number of people needed to train for process improvements; May 12, 2010: reduction in supervisory time as experience grows; and Jan. 11, 2011: inside counsel are far too costly in relation to outside counsel.).