Articles Posted in Tools

To find a qualified expert witness quickly and efficiently is no easy task. Moreover, the charges of the experts can run to six figures, not to mention the fees of your lawyers who prepare them for their testimony (See my post of May 17, 2006: estimated $6 billion-plus niche for expert witnesses.). Appropriately, all kinds of organizations serve as intermediaries and offer databases of experts, help locate them, and provide references (See my post of April 23, 2007: 16 resources; and Feb. 2, 2008: expert witness sources and nine references cited.).

Round Table Group, a 14-year old company that locates experts for lawyers, claims a network of 95,000 experts. Beyond that database, according to an interview in Met. Corp. Counsel, Feb. 2008, at 18, the company will conduct customized expert witness searches for clients, “pre-screen candidates to verify their qualifications, and coordinate interviews with qualified candidates, all at no charge.”

Multiple-choice questions on surveys of law departments are ubiquitous yet problematic (See my posts of June 16, 2007 on MECE; Dec. 3, 2007 for five improvements; and Dec. 20, 2005 on wording.). An alternative form of question asks respondents for text comments. The challenge then is to turn the comments into something digestible and into statistics.

With the technique known as “content analysis,” someone reads the text answers and clusters them according to their content. For example, if a question on an employee morale survey invites open-ended suggestions, that is a good situation for content analysis.

The technique is hard to do because you must make decisions and not let your views warp how you cluster and interpret the responses. The advantages of the technique include that you learn what you did not even think to ask about in a multiple-choice question, you get more nuance in context, and you can produce metrics. You can say that “30 percent of the lawyers want more desk top space.”

Adverse selection applies to those who manage law departments. First, however, a short explanation of the term. One example of adverse selection is where more people who need insurance buy it and healthy people forego it. An incentive system drives out the good and leaves in the pool the worse (See my posts of Jan. 1, 2008 on agency theory and adverse selection; and July 14, 2006 on poor law firms driving out good law firms.).

Think about law departments. If you impose too-tight restrictions on your law firms, the better firms may decline to represent you while the worse or needier firms will continue (See my post of Nov. 27, 2007 on when law firms fire Fortune 500 companies.). If you do not pay your lawyers at least around the going rate, your better lawyers will move on, leaving you with lesser lawyers. If you charge back inside lawyer time, client groups that have few legal needs may not pay the fees, yet the troubled groups may not have the funds to hire you. If your technology is not interesting, up-to-date, and appreciated, over time adverse selection will leave you with weak IT support (See my post of Aug. 27, 2005: less than one IT staff for every 24 in-house staff.). Adverse dispossession anyone?

At a panel, a financial-services company’s general counsel described a study he carried out regarding customer arbitrations. The general counsel had staff pull one out of eight arbitrations at random going back 12 years and compile approximately 50 data points about each of them. Among the data points were whether the arbitration was handled by outside counsel or within the law department, the total cost of resolution, and how long the arbitration process took.

That mass of data amply justified a multiple regression analysis (See my post of Aug. 14, 2005 on regression analysis; and April 22, 2007 with several comments on statistics.). The general counsel used an employee who knew multiple regression and could find out from it what factors influenced the costs of arbitrations and to what degree. The analysis disclosed many surprising findings, such as that the ages of the more costly plaintiffs were toward the younger end of the client scale. Other law departments, with other masses of data, could benefit from regression studies.

Hail the powerful and protean pile! As venerated, useful, and overlooked as the pencil, the pile commands an honored, if humble, position of esteem in law department management.

The pile is integral to knowledge management. We each know just where that article is from a year ago in the pile on the window sill. Piles are the foot soldiers of productivity. When the call comes about that superfund site, we reach quickly to the pile in the back right of our desk. The pile pattern serves as our to-do list (See my post of Jan. 3, 2008 on other organizing devices.). Our piles bare our soul and norms to whoever glances into our office. “Chris must be busy, the desk is stacked high.”

And not to forget, piles pull the purse strings; small mounds of invoices to be reviewed and RFPs to be analyzed. Balancing and shaping piles, with the necessary props and flying buttresses presents us with legal technology in its simplest, yet most subtle, form.

A managerial breakthrough waiting to happen is the recognition by general counsel that an isolationist view of law departments limits our understanding of reality. It is blinkered to focus on how law departments become involved in an issue only at certain points and exit when the “legal part” is done. A holistic view of the situation would be better. In real life, events do not break themselves into clearly discernible “legal chunks” (See my post of Jan. 3, 2008 on a similar view that “legal risk” is broadly defined.).

Law departments ought to pitch into to examinations that go back in time to the origins of problems and forward in time to their full resolution and even to later consequences (See my post of Aug. 16, 2006 about a sense of end-to-end contract processing.). This requires cross-functional teams as well as people from different levels to carry out end-to-end examinations of processes.

The Association of Litigation Support Professionals, “the only nonprofit organization whose members comprise the full spectrum of individuals involved with litigation support,” publishes a monthly newsletter for its members. Hundreds of service providers could be members of this group (See my post of Oct. 29, 2007 on this cottage industry.) as could be law-firm specialists. Law departments should be aware of the group and its benefits because those who are in-house and do litigation support are welcome.

One benefit of membership is the ALSP monthly newsletter. My friend Joe Howie sent me a copy of the ALSP Update, Vol. 1, Dec. 2007. It has 21 pages and covers a range of topics about the association, its activities, members, and concerns.

More and more law departments have their own litigation support staff or team (See my post of Nov. 13, 2007 on internal e-discovery groups.). This Association could be an excellent resource.

Ron Friedman attended the ACI Legal Process Outsourcing conference on January 17th in New York City. He posted on his blog the comments of Donna Webber, Chief Counsel, CIT Capital Markets, who was speaking about the experience of CIT in using Indian legal service providers.

”Law department headcount was frozen but we had new tasks we had to do. So outsourcing was natural to evaluate. But American lawyers are innately skeptical of lawyers elsewhere to do the work. When we first approached offshoring, we were skeptical. When we saw quality, we were relieved. Given the offshore savings, making the decision was easy.

All of our NDA for deals are drafted and/or reviewed by offshore lawyers. We found that inhouse counsel spent inordinate amounts of time doing this. We developed extensive guidelines on provisions to include and how much we were willing to bend. We provided this detailed guidance to offshore lawyers. So far, our business clients are very happy.

That term has allure. It means “How many choices does a law department have to solve a given problem.” I ran across it in a fine article in Cal. Mgt. Rev., Vol. 50, Fall 2007 at 178, and mused over how it might apply to general counsel and their decisions (See my post of Dec. 20, 2005 on real options.).

With outside counsel, degrees of freedom come from having several firms that can perform substantially similarly, from having an offshore provider who can supplement those services or even perform some of them, from being able to recruit internally to meet the need, and from having crafted form documents and other tools to enable clients and the law department to accomplish the work. Competitive bids, done well, also increase a law department’s degrees of freedom.

The more choices you have as an in-house manager, the more degrees of freedom you enjoy.

If you want to spur new practices in your law department and break out of the mold of accustomed behavior, you might want to adopt an idea from MIT Sloan Mgt. Rev., Vol. 49, Winter 2008 at 48. In this article on how to boost innovation, the authors describe a company that sets aside some money to invest in good ideas from employees. A committee collects the ideas, reviews them, and decides which ones to fund.

Likewise, albeit on a smaller scale, a law department might collect ideas for how to improve its operations, and selectively fund them. Implicitly, the department is praising its members for thinking how to improve (See my posts of Nov. 16, 2005 on Kaizen; and July 5, 2006 on the Horndal effect.).