Articles Posted in Tools

InsideCounsel polled its readers and 192 responded, of which about a third were general counsel or deputy general counsel. According to InsideCounsel, Oct. 2007 at 64, the median 2006 revenue of the respondents’ companies was $2.3 billion and they typically had one or two IP attorneys. Hence, senior lawyers in large measure from big companies that have IP lawyers offered their views.

One question asked “What percentage of your IP work is outsourced overseas?” Somewhat more than half answered zero (57.8%), which means that the rest, almost half the group, have turned to offshore providers for services related to trademarks, copyright or patents. More precisely, about a fifth said 1-10 percent of their work goes offshore (21.9%); some ship off 11-25 percent of it (10.9%); some offshore 26-50 percent (5.5%), and a handful do so with more than 50 percent of their IP work (3.9%).

As with most metrics, I am grateful to have these, yet disappointed the data doesn’t go deeper, such as to separate patent from trademark work, or to explain what activities are offshored. Even so, the point to take away is that the use of offshore assistance in the IP area is reasonably widespread, and I believe certain to grow (See my posts of Jan. 28, 2007 with an overview of the offshore market; and June 11, 2007 #3 with an excellent resource.).

A mind-boggling item in the Economist, Dec. 8, 2007 at 12, explains the recent surge of interest in what is called “evolutionary design.” Evolutionary design uses a computer program called an evolutionary algorithm to “run through tens of millions of variations on an invention until it hits on the best solution to a problem.” As personal computers have become faster, the software has found additional uses for its ability to try out huge amounts of combinations and test the results against the desired outcome. Only successful “evolutions” survive, so the output gradually becomes more fit to purpose.

What struck me was the article’s description of the way a team at Stanford University developed a Wi-Fi antenna for a client who did not want to pay a patent-license fee to Cisco. “The team fed the algorithm as much data as they could from the Cisco patent and told the software to design around it. It succeeded in doing so. The result is a design that does not infringe Cisco’s patent – and is much more efficient to boot.”

In-house patent lawyers ought to be worried, on two counts. One is that their workload might hugely increase if patentable inventions can be generated en masse from evolutionary algorithms. The other is that patent litigation will become more convoluted and common if software generates clever work-arounds.

A previous comment explained these three contributors to in-house workload (See my post of Nov. 24, 2007.). Assuming these witches are in fact riding the skies, why is it that the median number of lawyers per billion dollars of revenue has barely changed in the past 10 years (See my posts of Dec. 5, 2007 about the steadiness of key benchmarks over 14 years.)? Several explanations come to mind.

1. Lawyers in-house, together with their outside counselors, have become more capable, more productive, or both. The quality of both in-house lawyers and outside counsel have increased, since US law schools have not opened up more seats but there has been more competition for those seats. Further, many excellent lawyers have left firms to go in-house. Part of the improvement, I suspect, has been the dramatic rise in the number of in-house lawyers who are female (See my post of Nov. 10, 2007 on gender differences and references cited.).

2. Somewhat paradoxically, new laws, regulations, patterns of practice, or court decisions sometimes clarify an area of law and reduce complexity (See my post of Feb. 16, 2006 about tax code elaboration.).

Every “new idea” has antecedents, and I generally think that “new” is a figment of journalism – it merely means that some law department practice gets written about and praised as novel, but in fact other law departments had done the same before, at least in part. Even so, I tried to recall some practices that were at least unknown to me when I wrote about them. Here are the ones that came to mind.

Litigation Advisory Board of Baxter (See my post of Aug. 3, 2005.).

The hire-only-partners approach (See my post of Nov. 19, 2005 about USF&G using only partners.).

Several posts have assembled the various attempts on this blog to define terms that we use when we talk about law department management (See my posts of May 3, 2006 with 32 words or phrases; Aug. 26, 2006 with 10 more; and Nov. 26, 2006 and 13 more.).

To those 55 definitions, I have added nine more recently (See my posts of June 10, 2007 for “compliance”; June 10, 2007 for “crisis;” Nov. 20, 2007 on “culture”; June 9, 2007 for “flex time” and “compressed time” with 4 references cited; Nov. 27, 2007 for “management tools”; June 5, 2007 for “office politics”; July 29, 2007 for “rents” as used by economists; and May 16, 2007 regarding “world class.”).

Other posts have considered the meanings of various terms (See my post of June 4, 2007 about the illusive meaning of “leadership,” “culture,” “competencies” and “clients”; June 18, 2007 on what we think of when we say we “fire” a law firm.) Even farther afield are the meanings cultural anthropologists might derive from out offices and behavior (See my post of June 24, 2007.).

A previous post discusses multiple-choice questions and one feature of them: how participants are invited to select among the choices (See my post of July 3, 2007.). Other features of the ubiquitous form of question deserve comment. Multiple choice questions on surveys ought to:

Recognize that some plausible choices have been omitted and cover them with a selection for “Other” (See my posts of April 12, 2006 on the importance of “Other” as a choice; and July 14, 2005 to the same point.).

Strive to cover every reasonable choice and not overlap (See my post of June 16, 2007 on the test of Mutually Exclusive, Comprehensively Exhaustive.). To do so, selections need to be defined tightly and worded carefully.

As I reread my comments on a survey that asked law departments to list innovative practices their law firms had recently proposed or used (See my post of May 4, 2005.), I realized I might have been naïve. The list was tepid at best and stone cold from most of the respondent departments. To slam law firms for lack of innovation, as I did, might have been wrong.

Some general counsel may cherish a new idea hatched just for them and may not wish to share it with the entire world, especially competitors. They may not view their initiative as open source software, available for everyone to use, modify, and improve. A cost-saving trick or a productivity booster has a competitive advantage. Perhaps the same reasoning explains why some law departments do not identify the law firms who serve them most. Good ideas may be under-reported in the law department management world because some beneficiaries view their ideas as proprietary.

A previous post collected 23 of my more recent lists of how to do something (See my post of Nov. 26, 2007.).

A large number of earlier posts offer how-to suggestions (See my posts of June 14, 2007: conference calls, 6; April 27, 2005: determine the relative effectiveness of cost control practices; Jan. 10, 2006: boost creativity; May 1, 2005: spread CLE learning Feb. 18, 2006: make better decisions, 3; July 15, 2005: increase the “deep smarts” of lawyers; April 17, 2006: empower subordinates, 4; Dec. 20, 2005 and Nov. 14, 2005: help clients get the most from in-house counsel; March 19, 2006: manage litigation hold orders; Oct. 30, 2005: pay bills; Oct. 8, 2005: assign litigation lawyers; April 10, 2006: select a patent firm; March 18, 2007: identify pockets of non-users of the law department; Feb. 1, 2006: lessen peer pressure and the general counsel chill; April 3, 2005: measure productivity; Feb. 8, 2006: account for recoveries; April 27, 2007: define the strength of a relationship between firm and department; Nov. 27, 2005: supervise lawyers; Jan. 24, 2006: match lawyer titles to client levels; and April 8, 2007: add value.).

Whew! How to wear myself out!

Any law department can use software that helps manage large projects, such as a spin-off, an IPO, a large acquisition, or a major lawsuit. A number of project-management software applications are available (such as Harvard Project Manager) but recently, according to an article in ACC Docket, Vol. 25, Nov. 2007 at 40, “at least one law firm has created its own such a system and has applied for a patent.” That software is customized for major litigation.

The software itemizes virtually every task involved in litigation. It asks the law firm or law department to fill in information concerning people who will work on those tasks, their hourly rates, the number of hours anticipated for the task as well as start and finish dates (See my post of June 24, 2007 with five references to project management.)

Litigation project-management software will generate Gantt charts (bar charts that reflect the project’s progress), reports on milestones, and executive summaries. The software not only will help manage the tasks themselves and their costs but also ought to complement data in matter management systems.

In the context of law department management, it has become frustrating for me to define the term “management tools” (See my posts of April 17, 2007 on tools; and April 14, 2005 on 18 tools and a definition.). Tools help managers and others gather facts, organize those facts, diagnose the situation in light of those facts, or communicate any of this. In my conception, tools have four characteristics (See my posts of May 14, 2005 and Nov. 20, 2007 on the management-tools survey of Bain.), but I am not yet comfortable with these distinctions.

1. Tools must be teachable, which excludes many innate or personal attributes. Intelligence is not a tool (See my post of Jan. 15, 2006 on how to increase IQ; and Nov. 7, 2007 about the Flynn effect of rising IQs.) nor is much of humor or creativity. A process map, I would claim, is a teachable tool as is a meeting agenda. People prepare guidelines for how and when to use tools, and there are courses and books about the proper use of the tool, such as the cornucopia of techniques under TQM.

2. Tools must be in writing or physical. Tools must be tangible so you can look at them; thus interviewing is not a tool as much as a skill, nor are benchmarking, focus groups, or change management as they are complex groups of activities that lead to what can be put into a tool. A survey is thus a tool as is a protractor.