Articles Posted in Thinking

To think is to make decisions: which facts to pay attention to, how to weight and combine them, what experience and knowledge applies to them, how to mix together the facts and legal knowledge, what to respond – all are decisions.

Everything that happens in a law department results from someone’s decision (or someone’s not making a decision). For example, delegation can be defined as assignment of decision making to someone else. Not evaluating law firms is a negative decision, but with quite profound consequences nevertheless. Creativity, to pick one other relationship, depends on decisions made.

Other characteristics of decisions come to mind. All decisions have probabilities as to whether they are fit for purpose, i.e., was it a good decision, which depends in part on the time period for the assessment. Two months later the evaluation may fall one way, will a year later the evaluation may even reverse. You also need to separate the decision from the process employed to reach it.

Some drugs are believed to boost memory (See my post of Feb. 7, 2006: 40 drugs that improve memory, including modafinil; May 30, 2006: working memory; Aug. 19, 2007 #2: α2b-adrenoceptor and yohimbine; March 2, 2008 #4: ampakines and the neurotransmitter glutamate; April 22, 2008: cogniceuticals include memory enhancement; and Dec. 17, 2008: beyond brain science to gene doping.).

Many neuroenhancers are on the market, such as drugs designed to treat ADHD (Ritalin, Adderall), Alzheimer’s (Aricept), and narcolepsy (Provigil). According to Julian Dibbell, ed., The Best Technology Writing 2010 (Yale Univ. 2010) at 197 (by Sam Anderson), drugs such as these “can produce, in healthy people, superhuman states of attention.” Neuroenhancers are currently illegal to use without a prescription but that hasn’t deterred many people from swallowing them. In a competitive world, awash in winner-take-all tournaments, the urge to boost one’s IQ will prove irresistible to some lawyers.

Concentrate on the task at hand. One reason is that “when forced to multitask, the overloaded brain shifts its processing from the hippocampus (responsible for memory) to the striatum (responsible for rote tasks), making it hard to learn a task or even recall what you’ve been doing once you’re done.” This disheartening glimpse from neuroscience comes from Julian Dibbell, ed., The Best Technology Writing 2010 (Yale Univ. 2010) at 189 (by Sam Anderson).

Our brains process serially, not in parallel. If we want to think hard, we need to think solo. Put differently, “When you think you’re doing two things at once, you’re almost always just switching rapidly between them, leaking a little mental efficiency with every switch.” (at 191)

Although I succumb to distractions, I have bashed mental juggling on this blog (See my post of June 16, 2010: internet distractions and some tools to cope; Sept. 20, 2010: myths about concurrent thinking; Aug. 26, 2009: trying to do too many things at once with 8 references and 1 metapost.).

Eighteenth and nineteenth century Romanticism has been viewed as a reaction to the perceived hyper-rationality advocated by Enlightenment thinkers. For Romantics, passion and ineffable beauty, pastoral values and the soul, heart and community, all were dimensions of life appreciated mostly by art, literature and music and not to be dismissed by the cerebral coldness of science.

So too, a Romantic view in law departments extols teamwork and collegiality, the deep wells of creativity, collective spirit, supportiveness and partnering with avuncular law firms. That spirit warns against benchmarks, process maps, performance goals, time tracking, software databases, and all disciplined, means-end management. Not structure and process but feelings and fluidity.

Much as I tried to write this post neutrally, it must be blazingly clear to my regular readers that I side with Enlightenment over Romantic values. The unfathomable depths of human beings and all their cluttered complexity may well be the fulcrum of law departments but they are so mutable and resistant to tangible recommendations. Stick to improving the parts that can be studied, the domain of empirical and positivistic understandings, I say, even while you acknowledge that everything depends on the people.

One article in Julian Dibbell, ed., The Best Technology Writing 2010 (Yale Univ. 2010) at 65 (by Douglas Fox), explains clarity as essentially a thermodynamic relationship. If you double the signal-to-noise ratio in a message you quadruple the energy someone consumes to maintain the same level of accuracy of understanding. In terms of neurons firing in the brain, this principle tells us, the more crackle in the radio, the (many) more calories we burn to make sense of the message. The more jargon in the legal memo, the more footnotes and digressions, the more typos or long blocks of text, the more extraneous facts – clots of useless or low value noise – the harder the reader or listener has to work to make sense out of it.

Moreover, when noise increases, the increase consumes much more extra energy than a linear increase. The formula is S/N = 20 log10(Vs/Vn) where Vs is the signal strength and Vn is the noise level (expressed as Volts) and the result is in decibels. The natural log falls off quickly as noise increases (as you divide the voltage of the signal by a larger noise number). If my 20 slide PowerPoint presentation had one wasted noisy slide but then I lard it with 4 fluffy or off-point slides, the energy needed by those in the meeting to derive the same quality of information must increase significantly.

Many bloggers write longer posts than I do. Theirs verge on articles, mine stick to the three-paragraph maximum with a formula: state an idea clearly, give the source or back references; add further thoughts. Enforced formats force insights and clarity. The challenges of a pattern and concision appeals to many who write because they lead to notable output, whether they be haikus, Twitter nuggets, sonnets in iambic pentameter, limericks, feuilletons, ads for the lovelorn in the personals, or Emily Dickinson’s gems — the creator ponders and crafts more finely.

A lawyer who sets a goal to write all memos to clients in one page or less, or a lawyer who thinks through a pro and con table for a difficult choice, or a lawyer who self-prohibits legal jargon gains from those enforced formats and restrictions. Executive summaries embody a common format convention. When we push ourselves to write with discipline and differently than our accustomed unconsidered spout of words, we sharpen our point, our writing, and indeed our fundamental thinking.

The undeveloped field of law department management, a field without theory, short of empirical data, unresearched and rarely even openly disputed, needs all the insights it can get. Some flashes can come from concepts and insights kidnapped from other disciplines.

Many disciplines have contributed to this blog, notably economics and psychology, but also statistics, sociology, and philosophy and others (See my post of Aug. 20, 2006: evolution; Aug. 20, 2006: psychology of foxes and hedgehogs; April 9, 2008: genetics and DNA; June 25 2008: evolutionary economics; Aug. 4, 2009 #2: borrowings from physics; and Oct. 28, 2009: paleontology and punctuated equilibrium.). Whether those borrowings do justice to the source or illuminate how legal departments operate and how they might improve concerns me.

For that reason, Stephen H. Kellert, Borrowed Knowledge: Chaos Theory and the Challenge of Learning Across Disciplines (Univ. Chic. 2008) is a tonic. Kellert, a professor of philosophy, offers much learning about the attempted application of ideas from the sciences – specifically so-called “chaos theory — into the humanities. The opportunities lie in the inventiveness of borrowing: a concept such as strange attractors from nonlinear dynamics that might help us structure or explain something about law departments. The risks include erroneous application, misleading rhetoric, and unrealistic translations. It is an exciting effort, but needs caution.

In talent mgt, Oct. 2010 at Supp. 7, a pyramid from National Training Laboratories depicts the relative effectiveness of seven ways to learn. The least effective, at the top of the pyramid, is a lecture (given a percentage of 5% but the article does not explain that number). Then comes reading (10%), audio/visual (20%), demonstration (30%), discussion group (50%), practice by doing – which includes simulations (75%), and finally teaching others – which includes writing blog posts! – at 80%. My supposition is that the percentages indicate the relative amount and speed of learning from each method (See my post of Sept. 1, 2008: learning methods with 12 references; and March 11, 2009: experience or learning curve with 9 references.).

Training in law departments upends the pyramid of learning effectiveness. Talks by outside counsel are CLE lectures; reading trade journals and cases happens all the time. However; you could say that on-the-job-training is the most common form of learning in law departments

At the start of many meetings meant to reach a decision, researchers have found, the attendees begin by disclosing their pre-meeting inclinations. That common practice – a straw vote, so to speak – has bad consequences. According to findings summarized in strategy + bus., Issue 60 at 160, the attendees are more likely to ignore information that others produce thereafter. Once they have voiced an opinion, even if it is tentative and ill-informed, people tend to stick stubbornly to that view.

The lesson for legal departments is to have people stifle the urge to speak too quickly about the conclusion they might favor. Discuss pros and cons and alternatives, but hold their opinions until the end of the meeting. Ranking lawyers, especially, should hold their tongues early on.

If we say that the company lost the case when it slipped on a banana peel of the jury, the metaphor conveys much. A fascinating series of articles in the J. Assoc. Legal Writing Directors, Fall 2010, argue for the pervasiveness and power of metaphors. Metaphorical writing serves a decorative function which enhances persuasiveness. Metaphors make abstract concepts more concrete. Metaphors resemble reasoning by analogy because they compare one concept with another; they unleash creative thought and are famously concise. Language fails without metaphors.

If a general counsel refers to the legal team as a family, the metaphor ripples in many directions (a deliberate metaphor). An in-house lawyer who refers to constructing a license agreement that is airtight and balanced like a seesaw invokes multiple evocative metaphors. Metaphors are lenses for perceiving multiple aspects of the situation simultaneously, such as if a litigator complains about the fog of trial. When we speak of layers of reports in a law department, the metaphor of layers draws in such concepts as hierarchy, levels, depth, power, and fixed structure. Or “the boundaries of law departments” suggests physical enclosure, solidity, collapse of walls, clarity, and more.

Whereas metaphors once mounted only a linguistic burro, more recently they ride the steeds of cognition (another deliberate metaphor). Metaphors appear to be fundamental to how we think. Effective metaphors map concepts across different domains and enrich how we view the world. When in-house counsel write and think, they should consciously relish and unleash the potency of metaphors.