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Every general counsel who has direct reports, by which I mean senior lawyers who manage other lawyers, deals with the different styles of those lawyers in staff meetings. Every general counsel encounters how their comments dampen or direct discussion (See my post of Feb. 1, 2006: how to reduce the chilling effect of a dominant personality or position; Dec. 8, 2006: a GC’s chilling effect; Jan. 9, 2009: ideas are suppressed around a general counsel; and July 12, 2012: two methods to warm the chill.).

To reduce that quashing risk, two techniques from the NY Times, May 13, 2012 at BU2, are worth considering. They were articulated by the founder and general partner of a venture capital firm and they reflect a deliberate effort by her and her fellow partners to foster open communication.

At meetings, “Each person would have time to be heard. And each person would be required to be heard.” On important decisions, this obligation for each direct report to weigh in should be worth trying. I like the additional touch that everyone first write down their position and what they would do before anyone talks. Further, the general counsel should speak last.

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Almost seven years ago I listed 12 general counsel who had turned to management consulting after their stint as a top lawyer (See my post of July 31, 2005: from Bob Banks to Peter Zeughauser.). It seems so natural, but successful career shifts from practicing to preaching are difficult. I made the point back then, understatedly, that “some have succeeded.”

To the list from long ago I can add Kevin Blodgett (formerly of Dynegy), Jim Boeckman (from Toppan Photomasks), Ron Pol (Acting GC at several New Zealand entities), John Wallbillich (from a Midwestern energy company) as well as Scott Ewart, a former general counsel of two Canadian companies. Some in-house lawyers come to mind who were not general counsel but later tried their hand at consulting (Suzanne Hawkins, Duncan Smith) and at least two others that I know of are doing so now.

In the vintage days of consulting to legal departments, the field counted quite a few who had no law degree, let alone had practiced law in-house. Those included Bob Berkow, Jon Bellis, Dan DiLucchio, and a raft of others. Even now several non-lawyers dispense management advice to general counsel, including Richard Stock and Helene Trink.

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An enthusiast duplicate bridge player, I have for years added periodically to my personal summary whatever strikes me as useful. My personal bridge log is now about 60 pages. Writing helps test whether I have learned something, it helps me remember, and it helps me reorganize material in ways that suit my mental models.

Every lawyer in a company learns as they go. They talk to others in their field when they bump into them or meet across the table, they read articles that come across their desk, they satisfy their CLE requirements as best they can – but what they rarely do is set themselves to deliberate study (See my post of May 27, 2008: write down nuggets of learning.). On-the-job training suffices for the large majority, I suspect. Deliberate programs of learning are the great exception.

Are there examples out there of in-house lawyers who keep a learning diary? Or any exemplary autodidacts who pick a reading list and diligently summarize what they get from the books or articles? Any that create a living, growing manuscript of what they have learned in their field?

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Most general counsel sharpen their management tools from reading about a technique that strikes them as worthwhile, or from hearing about one at a conference or meeting. Some less common sources also supply new ideas.

You can ask your favorite law firms to critique how a major matter was handled by another firm (See my post of Feb. 25, 2010: post-mortem competitions by law firms.).

You can sponsor a contest. Jonah Lehrer, Imagine: How Creativity Works (Houghton Mifflin 2012) at 119-2-122, reminded me or this from his discussion of InnoCentive. InnoCentive started at Eli Lilly but was spun out. It provides a platform for companies to offer rewards for solutions to difficult problems. So too might a law department (See my post of April 29, 2011: Brazilian think tank sponsored a competition; Feb. 21, 2008: College of Law Practice Management InnovAction Award; Dec. 5, 2010: Financial Times innovation award to ITV; and Dec. 3, 2010: seven law departments and two focused initiatives recognized by the Financial Times.).

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A recent book explains a half dozen ways to goose your creativity. The book is Jonah Lehrer, Imagine: How Creativity Works (Houghton Mifflin 2012) at 30-44. Lawyers practicing in companies need all the creativity they can muster, so here is my thumbnail of each method.

Spend time on a problem, then relax. Apparently, before a person is conscious of an insight, there is “a steady rhythm of alpha waves emanating from the right hemisphere” (at 30). We are more likely to trigger the alpha waves when we are relaxed, not when we are sturdily focused on a problem.

Smile and feel positive. Research conducted in Germany credits positive moods with enhancing creativity and fruitful associations (at 32).

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With the surge of research on the neural underpinnings of cognition, you can’t help but project that as we learn more about the electrical and chemical exchanges in the brain, we will put more of the extraordinarily complex pieces together. Given time, research, funds, better equipment, and the resulting insights, we will know more how we think, what can help us think, and ways to spot who shows promise of the legal thinking needed.

Jonah Lehrer, Imagine: How Creativity Works (Houghton Mifflin 2012) at 17, describes an fMRI study that illustrates this future. Researchers were studying sudden insights. They found that just before subjects realized they had an answer their brains generated a gamma-wave spike, the highest electrical frequency of the brain. “Gamma rhythm is believed to come from the binding of neurons: cells distributed across the cortex draw themselves together into a new network that is then able to enter consciousness.”

Even more usefully, it was found that the gamma waves burst from a small spot on the surface of the right hemisphere just above the ear called the anterior superior temporal gyrus (aSTG). Insight, that is to say, appears to have a neural correlate. If so, we are a step closer to harnessing and spurring creative insights.

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A column by Richard Stock for the Canadian Corporate Counsel Association’s quarterly, Leading Corporate Counsel, Fall 2010, provides a rule-of-thumb for when to consider in-sourcing legal work. Stock writes that “a minimum of 600 external hours must be in-sourced to cost justify a new position in the legal department.” What he means, I believe, is that if external counsel bill at, say, an average effective rate of $400 an hour, you need the new hire to take over 600 of their hours ($240,000) to make the additional head pay off. rstock@catalystlegal.com

Even if that suggested threshold is a bit skinny, reduction of outside counsel spend that is projected over a few years certainly justifies to a large degree a new hire, it is not the only reason. With an additional lawyer, the department benefits from more backup and from succession planning – a deeper bench, in short – and probably from higher client satisfaction.

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Deloitte’s Global Corporate Counsel Report 2011 shows a chart, based on data from nearly 900 in-house respondents around the world, of the “Responsibilities of Corporate Counsel.” The data pertains to the various functions general counsel oversee. For each of eight areas of responsibility, the percentage of respondents who have the responsibility increased from the figures of a comparable study five years before. An odd pattern, by all means.

The eight areas include five typical ones and three unusual ones. Regulatory compliance, company secretarial, risk management, ethics or whistle-blowing, and department management are commonly the general counsel’s charge, in addition to legal services.

Much less common, and therefore noteworthy for having been included in the Deloitte study are “directorship of subsidiary,” “strategy development,” and “project management.” If “strategy development” pertains only for the legal team, nothing stands out. But if it broadens to company-wide strategy, I am surprised at the increase. The same interpretive distinction applies to project management. To be a director of a subsidiary is a new responsibility for me to hear about. It confounds me why the frequency of all eight roles has increased.

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When embroiled in a law suit, many times inside lawyers ask their litigation counsel: “What are our chances?” Define successful outcome as you will, they want the partner to give the odds. The experienced and wise litigation partner replies, reluctantly, “Seventy percent.” That estimate is a subjective probability, according to mathematicians. It estimates an outcome of a single event, as compared to an outcome from a series of similar events that could be simulated like coin tosses.

A neat idea follow-up question comes from Keith Devlin, The Unfinished Game: Pascal, Fermat, and the Seventeenth Century Letter that Made the World Modern (Basic Books 2008) at 162, as originally proposed by an Italian mathematician, Bruno de Finetti.

Offer the partner a deal based on a thought experiment. Imagine a jar containing 100 balls, 70 of them red (since the estimate was 70% likelihood of a successful resolution), 30 black. Give her a choice. Draw one ball from the jar and if it’s red, the law department will pay the firm $250,000 (or some substantial amount). If the resolution of the case is not a success – as defined in advance and represented by a black ball – the firm rebates $250,000. The estimate was legitimate and confident if the partner agrees to the game; she will modify her estimate if not. A de Finetti test ultimately establishes a correspondence between subjective possibility and frequentist possibility.

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When I have written about the law departments of government agencies, mostly I have marveled at the size of them (See my post of Sept. 10, 2005: New York City’s Corporate Counsel Office, more than 650 lawyers; Nov. 6, 2005: US Department of Homeland Securities, roughly 1,500 lawyers; Pennsylvania’s Office of the General Counsel, 700 lawyers several years ago; May 10, 2006: legal advisors to the U.S. Department of State, 165; Aug. 2, 2006: State of Massachusetts, something like 650; Dec. 3, 2006: New Jersey Attorney General’s Division of Law, 580 lawyers; Feb. 16, 2009: FBI, 180 lawyers; March 11, 2009: United States Postal Service, 220 attorneys; and Dec. 14, 2011: U.S. Air Force with 1,500 lawyers.).

Just the references in the last paragraph, stumbled upon by happenstance, support surmises that (1) the largest law departments in the country support government agencies and (2) thousands of governmental legal departments exist in the United States (See my post of Dec. 20, 2011: government lawyers outnumber private sector two to one; and Dec. 31, 2008: 9% of lawyers in large U.S. survey identified themselves as government lawyers.).

Also regarding governmental legal teams, one post here referred to several that had faced internal audits of their teams and processes (See my post of May 31, 2005: Austin, Texas; Dec. 23, 2005: Pierce County (Washington) Prosecuting Attorney’s Office; March 26, 2007: Hernando County, Florida; May 19, 2006: LA’s Office of the City Attorney; Jan. 20, 2006: California Department of Transportation’s Legal Division; and Dec. 18, 2006: Amtrak.).

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