Articles Posted in Thinking

If a team has to choose a software package from a group of contenders, one way to do that is to choose between package 1 and package 2, then between the winner of that and package 3, then between the winner of the first two competitions and the next package, until you are done. As explained by John D. Barrow, 100 Essential Things You Didn’t Know You Didn’t Know: Math Explains Your World (Norton 2008) at 169-171, this sounds efficient and logical, but maybe it is not fair.

The outcome depends heavily on the order of packages chosen. If the stronger packages eliminate each other in the early stages, paradoxically a weak package can end up selected.

I wrote a set of propositions about new ideas in relation to law departments. The National Law Journal published them on April 11th and I invite readers to

here.

More, I urge readers to leave a comment here or email me with something they have done that some other readers might think of as new: “Hey, we should try that out!”

The NY Times reports on April 19, 2011, at D6 an oddity about learning. “[I]f you study something twice, in spaced sessions, it’s harder to process the material the second time, and people think it’s counterproductive.” So, to explain further, if you have pored over a decision or a debenture, when you return later for a second round it feels difficult to dig in and learn more. Surface familiarity misleads your awareness. “But the opposite is true: You learn more, even though it feels harder.”

Repetition and practice makes a huge difference, despite what you may feel, and the superior way to learn. The article adds that “difficulty builds mental muscles, while ease often builds only confidence” (See my post of Nov. 19, 2009: spaced education and pre-tests.). Felt familiarity should not blind you to the value of diligent application to absorb and understand.

The epistemology of the 19th century assumed that “facts” about the past were “out there” and that historians’ primary task was to collect and state them. Assiduous fact-gathering, they asserted, would bring us to know the truth about the past “as it really was.” In the 20th century this notion crumbled; postmodern thinking, as it is generally known, disagreed with “objective facts” from history. A similar split in beliefs, however, may still happen today when people write or speak about what law department managers purportedly did, and why

Postmodernists hold that no truth exists outside of what ideology creates. What people believe strongly shapes what they perceive to be facts. Truth is socially invented and consensually agreed to, not discovered. Postmodern thinkers deny there is a reality in the past beyond what is described by language, and the barrier of language, its inability to be clear, prevents historians from telling any “real” truth about the past. They also reject narratives of progress much as they scorn the absolutist world of 19th-century positivism. Postmodernism abandons the Platonic view of essences in favor or a socially constructed reality, as described in Vlatko Vedral, Decoding Reality: the universe as quantum information (Oxford 2010).

All this calls into question the quality, authenticity, and factuality of explanations regarding how and why things happened in law departments.

Watson’s triumph may be overplayed, but the PR coup points to a movement in which lawyers ally much more with software to become better decision-makers. So-called augmented cognition software has great allure in the law.

Integrated wetware and software can be generic (See my post of Sept. 4, 2005: computers can assist decision-makers; April 7, 2006: analytical software to assist experts; Aug. 14, 2006: statistical and linguistic algorithms to pick out key concepts in text; Oct. 21, 2009: collective of departments and shared decision software; Sept. 29, 2006: augmented-cognition software; Feb. 22, 2009: software to depict and quantify decisions; and Feb. 10, 2010: in future, software to help in-house counsel make decisions.).

Or the software can be domain specific (See my post of Dec. 8, 2009: global mapping of trademarks; June 11, 2008 #5: export compliance software at GM; and April 20, 2008: linguistic modeling software for invoice review.).

“[T]heory is a statement of concepts and their interrelationships that shows how and/or why a phenomenon occurs.” That definition from the Acad. Mgt. Rev., Jan. 2011 at 12, pushed me to contemplate the enormous amount of work that needs to be done for someone to even propose a theory of law department management.

In truth, we have barely begun. A large crowd of concepts jostle and contend, so far are we from a proposal to sort them, organize them, or unify them. Interloper theories borrowed from other disciplines have widely varying applicability. Metaphors intrigue but don’t enlighten.

All the social sciences fawn over the verifiability and reach of physical science’s theories. As examples, quantum theory and general relativity are, shall we say, light years ahead. The complexities of people interacting even within a small department, let alone with clients and law firms, make provable causal relations impossible to specify. According to Albert-László Barabási, Bursts: The Hidden Pattern Behind Everything We Do (Dutton 2010) at 65, the renowned philosopher Karl Popper, concurred. “If humans are involved, prediction is impossible, so don’t even bother.” Scientific laws permit, in fact depend on, prediction, but we will never be able to predict that a given management effort for a legal team will lead to a specified result. At best the probabilities of the result will increase as the effort takes hold, but deterministic cause and effect will remain far out of reach.

Power and knowledge accumulate together and feed each other. The more a lawyer knows about the law and the company the lawyer represents, the more influence that lawyer wields. The deeper the experience of a law firm partner, the more power that partner has to charge healthy fees. Information, as Michel Foucault famously formulated it, leads to knowledge, which fuels power in a variety of forms. This deep inter-connection coalesced for me from Joel Mokyr, The Enlightened Economy: An Economic History of Britain 1700-1850 (Yale Univ. 2009) at 35.

The nexus of power – the ability to decide and make something happen – and knowledge shows up everywhere for law departments. Favored law firms have earned that respect, generally speaking, because they know how to solve legal problems and accomplish legal work. Their effectiveness imbues them with power. High potential lawyers enjoy preferential treatment because their abilities outshine their peers’. Their extraordinary competence gives them a form of power. Executives in a company manifest power in many ways, such that lawyers who serve them treat them differently than they treat less powerful clients. That is the way life works: rank has its privileges.

A law department’s clout corresponds to how effectively it solves problems and accomplishes legal services. Power = knowledge.

Hugh Trevor-Roper’s book, History and the Enlightenment (Yale Univ. 2010) collects essays by the distinguished British historian. Trevor-Roper saw in the Enlightenment historians a seminal perspective, which is broadly called “philosophical history.” It rejects the mere accumulation of detail and fact; it rejects primary reliance on splendid examples of heroes and battles; it seeks explanations of events from the past that connect closely to the society at the time.

If those who think about management in law departments were to adopt a counterpart, perhaps called somewhat grandly “philosophical management,” they would not just describe what this or that law department does, nor would they focus on magazine-cover general counsel astride their department as a trend setter. They would try to derive fundamental operational principles that apply across law departments and that have demonstrable consequences.

Beliefs of general counsel regarding how best to relate to outside law firms vary enormously. Those ideologies, I submit somewhat puckishly, could be characterized with the well-known spectrum of political ideologies. Let me sketch my sense of the matchups.

Reactionary general counsel favor turning back to days of yore when a few gentlemanly law firms handled everything of consequence, monopolized legal talent, eschewed sordid marketing, sent “services rendered” statements every now and then, and didn’t change partners from year to year. Tradition, loyalty, don’t rock the boat…

Conservative general counsel use more firms but still defend hourly billing, bow to decisions by the partner as to whom to staff, keep their in-house lawyers churning through basic legal services, reluctantly invest in matter management software, and review bills in hardcopy — sometimes.

“We know that creative genius is not the same thing as intelligence.” The quote comes from a book review in the London Rev. of Books, March 3, 2011 at 11. Like idiot savants know a huge amount about a small area of knowledge, creative types may be hopeless intellectually outside their domain. Consider, next, the reverse: how likely is a very smart person creative?

“In fact, beyond a certain minimum IQ threshold – about one standard deviation above average, or an IQ of 115 – there is no correlation at all between intelligence and creativity.” The valedictorian may well be pedestrian.

Highly-regarded law firms recruit highly-intelligent law school graduates: law review editors, Order of the Coif, rarified clerkships, real brain boxes. That may tend to be true, but those with Stanford-Binet firepower don’t necessarily produce new solutions to difficult legal problems. In turn, when law departments cherry-pick the best of the brightest, there is no guarantee that those agile minds will spring open new legal strategies.