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The Economist, March 3, 2012 at 20, describes a nascent movement of people who measure aspects of themselves over time. They describe an investment banker who wears a headband at night that tracks sleep quantity and quality by measuring brainwave activity. The data from that tool, along with other information the banker tracks, such as diet, caffeine and alcohol consumption, and exercise help him sleep more soundly. Other examples suggest that in-house lawyers might learn much about their patterns of alertness and concentration if they measured themselves more. Passive devices of all kinds can (or will) track stress, engagement, break points and more (See my post of Sept. 22, 2010: pomodoros.). For example, the article mentions an adhesive patch that measures heart rate, posture, motion and temperature, all of which bear on intellectual sharpness and duration.

Why not have gauges that gives us clues as to our stamina, logginess, best time of day for thinking? Self-quantifying monitors will be available to guide us to greater productivity (See my post of July 29, 2007: ambient orbs.).

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A piece in the Economist, March 3, 2012 at 16, connects size of companies and creativity: “Size allows specialisation, which fosters innovation.” In my long-running series of discussions on why larger companies have less spending (in proportion to their revenue), I haven’t cited this link.

It makes sense. A specialist, more likely found in a larger law department, will be able to come up with new ideas more frequently than a generalist lawyer. The generalist, more common in smaller departments, struggles just to cover the basic points of an agreement or transaction that is unfamiliar. An expert moves swiftly beyond fundamentals and can devise improvements. All those small or large innovations pay off in lower legal costs as departments grow larger and can sustain specialists.

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We often use the term “equals” very loosely. “Her matter load is equal to his.” “Our paralegals-per-billion-of revenue is equal to the median for our industry.” In my column Morrison on Metrics: “Lies told by the equals sign,” I point out that “equal” rarely means what we think when we collect law department metrics. It was published on March 9, 2012 and you can click here to see the full discussion.

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Much of what happens in and regarding law departments doesn’t permit measurement. That intractable limitation on our understanding and analysis was underscored by an obituary in the Economist, March 10, 2012 at 106, of James Q. Wilson. The Harvard professor spent decades studying politics and society, subjects where challenges of methodology and data precision abound. “None was more thorny, for him, than quantifying the evidence. Many of the social problems he pondered seemed to boil down to culture and ways of thinking, for which the data were ungathered and ungatherable. As a scientist … he needed to count and collate things to find the answers to his questions. But nothing that was really important about human beings, he once said, could be measured in that fashion.”

Law departments being nano-societies, their mores, characteristic styles and operating conditions, their contributions to the client’s success, likewise elude measurement. The personality of the general counsel and the collegiality of the leadership group, the passion of the paralegals, and the engagement of the staff absolutely affect how well the legal team functions, but we can’t tally and analyze those important elements. Data is ungathered and ungatherable, notwithstanding a plethora of psychometric instruments. Even if a single law department collects some numbers, no comparable data would be available from a sufficient number of other law departments.

Metrics can only go so far, at this time. That bleak forecast, I hasten to add, doesn’t vitiate benchmarks. Don’t toss the bathwater of the immeasurable without grabbing the baby. Metrics go hand in hand with management, even if other aspects of a department hold the other hand.

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The 2011 In-House Counsel Barometer, by Davies Ward Phillips & Vineberg in association with the Canadian Corporate Counsel Association, includes responses from 864 lawyers in Canada. Of them, 295 were with publicly traded companies and 206 private. Public companies likely having larger law departments, this survey, which looked at individual responses not at responses by law department, may have had more multiple respondents from public than from private companies. Perhaps the ratio is about one to one.

If so and if something like that ratio might hold true in the United States, I believe there are a bit more than 4,000 U.S. companies listed on its various stock exchanges (although as I write this I can’t explain the Wilshire 5000). Perhaps, then, with one privately held company with a law department for each publicly traded company, we could estimate 8,000 corporate legal departments? The logic and fact basis are both tenuous, but somewhere there may be data on the ratio and we can narrow the range of uncertainty.

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An article in the ABA J., March 2012 at 26, focuses on bad behavior – jerks – in law firms, and cites Haynes and Boone as a firm that touts its long-standing no-jerks policy. Moreover, “The policy extends to clients as well, and Haynes and Boone has had to disengage in a few cases.”

Really? If a client doesn’t pay invoices, that justifies a firm if it stops working for the client. If a client engages in unethical behavior, stop the representation. If a deep disagreement arises over how to proceed, disengagement may be the only choice. But how many partners in law firms, having scrabbled and struggled to land a client, will pull the plug because whoever hired them is a “jerk”?

The quote is one of those lines that make people feel good to say, but not back up with specifics. “Our consulting firm doesn’t work with lousy clients.” “We only design buildings for clients that get it.” “Our law firm only handles interesting cases.” Maybe the bloviator can recall once when they turned down work for a client or bounced a client, but they recall that highly exceptional situation precisely because it is was rare. A bit like the reflexive quotes from law departments along the lines of “We fire firms that don’t serve us well,” the fact of the matter is it happens once in a blue moon, and firms firing clients because someone is aggressive, boorish, demanding, or jerkish probably happens when the moon is made of green cheese.

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It’s good to be an in-house lawyer. Many surveys ask those lawyers what they like about their job, and so did the 2011 In-House Counsel Barometer, produced by the Canadian law firm Davies Ward Phillips & Vineberg In association with the Canadian Corporate Counsel Association (CCCA). Actually, the question had a twist: “What is the main reason you would recommend becoming an in-house counsel to your friends or colleagues who are currently in private practice?” At page 15 of the report a chart lists 10 reasons to choose from, plus “Other.”

The dominant reason, selected by almost one out of three of the 820 respondents (28%), was “Better work-life balance.” A kindred reason, chosen by one out of ten as noted below, was “Better lifestyle,” which seems to overlap considerably. Doesn’t speak well for the culture of law firms, does it!

Two other advantages were tied at 15% (“Type of work (challenging, fulfilling)” and “Being part of business decisions”). Slightly less frequently chosen were “Integration into business process” at 12% and “Better lifestyle” at 9%. The remaining advantages had 5% or less: “Variety of work,” “Opportunity to gain business/sector experience,” “Ability to focus on work/client,” “No timesheets/billable hours,” and “Job security.” In short, less pressure at work and more interesting work – an alluring mix.

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The 2011 In-House Counsel Barometer, produced by the Canadian law firm Davies Ward Phillips & Vineberg In association with the Canadian Corporate Counsel Association (CCCA), asked respondents to break their work day into three categories: legal work, management, and business strategy or advice. The results from 864 total respondents to the survey were that about half their time went to “legal work” (53%), while “management” and “business advice” split the remaining time (24% and 23% respectively).

The report page that describes these findings does not explain “management” but we do know that almost half the law departments have three or fewer lawyers, so there can’t be much supervisory time devoted to other lawyers (See my post of March 12, 2012: mostly small legal departments in Canada.). It could be that the oversight of outside counsel counts as “management.” More mischievously, one could wonder if it refers to “managing up.”

It sets me back that of these in-house lawyers perhaps only half their work time is devoted to actual legal analysis and service. If that is what they would pay outside counsel to do, in contrast to “management” and “business advice”, could it be that fully loaded costs per hour are twice as high.

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Vincent Polley’s weekly compilation cited Legal Futures, Feb. 20, 2012, regarding Riverview Law. Riverview Law is the brainchild of LawVest, which has financial backing from global law firm DLA Piper and intends to become an alternative business structure (ABS). It will offer “businesses with up to 1,000 employees annual contracts from as little as £200 a month for all their day-to-day legal support, or receive a fixed price for a particular piece of work.” Further, “Advice is mainly provided remotely, backed up by sophisticated IT,” according to LawVest chief executive Karl Chapman.

I guess “remotely” means offshore, not just that lawyers won’t do house calls. “Sophisticated IT” may refer to form generation capabilities and databases of common questions and answers. The ”from as little as” wording could be a tease. Notwithstanding, the idea of moderately priced full-service legal support for companies exhibits daring.

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The 2011 In-House Counsel Barometer, produced by the Canadian law firm Davies Ward Phillips & Vineberg In association with the Canadian Corporate Counsel Association (CCCA) at 11, reports that the average number of hours worked per week up north was 47. What the median hours was is not mentioned. If we take 47 as the barometer, what portion of them are just “being at work” and what portion are the equivalent of what an outside counsel would charge for, i.e., not recruiting, CLE, filling out forms? If we took 10 percent off for administrative tasks, and then subtract five weeks for vacations and holidays, that leaves 42 hours of average chargeable time multiplied by 47 work weeks  1,839 hours a year.

On those assumptions, the figure used by the General Counsel Metrics benchmark report of 1,800 chargeable hours a year per lawyer, for purposes of calculating a fully loaded cost, finds good corroboration. More so because lawyers probably do not underestimate the hours they work; in fact they may consciously toss in an extra hour or three.