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The ACC chooses a handful of companies to promote to its member as exclusive providers for various services. For example, according to Met. Corp. Counsel, May 2011 at 35, Applied Discovery holds that coveted position for electronic discovery, which led me to look at the other service providers with like recognition. The Association’s website merely says that it has Alliances: “ACC has formed partnerships with leading legal and business service providers” and members of the Association are entitled to benefits. I could find no justifications for the choices. For ACC to explain its methodology, facts, and basis for selection would make a big difference to all in-house lawyers who want to rely on or find such a service provider.

On the ACC website are listed Chubb (“Employed Lawyers Professional Liability Insurance”), Copyright Clearance Center, IntraLinks (“market leader in online workspace solutions”), Practical Law Company, Robert Half Legal (“exclusive staffing partner of the ACC Alliance”), WeComply (“the leading provider of customizable online compliance training”), and West (“the foremost provider of integrated information solutions, software and services to the U.S. legal market”). The companies have competitors; law department managers would deeply appreciate specific reasons why the ACC chose one over another.

On what basis did the ACC choose these favored Alliance members? Perhaps it is as simple as pay to play. If the criteria and process discriminate better between the chosen vendor and alternatives, it would help members if the Association explained the basis of the decisions, with specificity, so that members could know what distinct capabilities distinguished them from the other providers of similar services. It would allay the admittedly cynical question of whether whoever pays the most to the Association gets the garland.

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A beautiful brochure arrived in my mail from the International Legal Alliance Summit, to be held in Paris on June 23rd. The brochure explains that attendees can choose 30-minute one-to-one meetings with senior partners from distinguished international firms or with general counsel from various big companies. A box lists general counsel who came to previous Summits but does not state any that are going to attend this particular one. The registration fee is in the $1,200 to $1,700 range per person.

I continue to be amazed that general counsel would willingly endure as many as seven half-hour meetings in the morning and nine handshake-and-hellos in the afternoon with law firm partners (or service providers) who are eager to be hired.

I must be missing whatever it is that lures buyers to the den of sellers, such as compensation, a free trip to Paris, frequent flyer miles, the ego-boost of non-stop wooing, the a plaque at the gala award dinner afterwards. Yet, the business model has been around for at least three years, as has my wonderment (See my post of Oct. 2, 2008: speed dating opportunity.). If you are interested, write the Leaders League.

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A piece in Met. Corp. Counsel, May 2011 at 30, points out advantages and disadvantages of fixed fees. One effect, according to Ashish Prasad, the CEO of Discovery Services,is subtle: “When negotiating a fixed fee, the client has an incentive to understate the complexity of the case.” Prasad cites Poonan Puri, “Taking Stock of Taking Stock,” 87 Cornell L. Rev. 99, 121 (Nov. 2001) in a footnote to this statement. If a law review article a decade ago wrote about this inclination to over-simplify a case to lower the fixed fee, then law firms must be alert to the risk. And, firms supposedly have experience with the case at hand, perhaps more than the law department’s lawyers. Their inclination to over-complicate the case may need a corrective!

Prasad also notes that clients push the scope of the work expected for a set fee – he uses the term “overextend” — and cites a LexisNexis survey as evidence. “One in five attorneys in private practice reported that their corporate clients overextended their flat-fee arrangements.” The LexisNexis State of the Legal Industry Survey (Fall 2009) at 23, drew on 350 lawyers in private practice. Note that 82 percent of the respondents did not identify this pattern.

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To sort out a number of strands of an important issue – the value delivered by in-house counsel – I took the propositional approach. I offer nine propositions about that value, such as how to measure it, what it consists of, the role of clients, and other points. It is beyond the scope of a 1500 word article to tackle the subject any other way, unless you wallow in the pabulum of platitudes (“In-house lawyers add immense value to their corporate clients, blah blah blah.”

The article should clarify some mushy points, corroborate some of your beliefs, and challenge some of your unexamined thoughts. Click here for

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Law departments readily agree to talk with someone from one of their law firms about the firm’s performance. Some law departments are asked by their law firms to speak with a consultant about the firm’s performance. What are the differences to a department between talking to the party of the first part and the third party?

With the partner, you don’t have to explain the background; with a consultant, there may be zero familiarity with acronyms, executives, business activities and history, or legal issues.

With the partner you may be reluctant to be too personal or too blunt; with a consultant who aggregates and conceals the specifics (sometimes), you can be direct.

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Some people, myself included, think of software for legal departments mostly in terms of features and functions. What the software can do and how well it does it dominates. But if a law department has several packages to choose from and those packages have converged on a fairly similar array of features and functions, then what?

Then ease of use moves to the fore, support provided by the vendor counts for more, training and customization tools take prominence, and congeniality of the vendor matters. Of course, cost always stands out, but my point is that what we first tend to notice – this set of fields, that style of drop-down menu, navigation tools, auto-backup, currency conversion, the ability to accomplish something in two keystrokes – fades when everyone offers about the same constellation of features and functions.

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A number of law department initiatives stumble because the lawyers don’t do their part. Whether the initiative be to contribute documents to a repository, write FAQs for an intranet, run a Center of Excellence, reduce outside counsel fees, take advantage of software, hire diverse candidates, or put evaluations into a database, the underlying cause of reluctance is a calculation. They figure that the individual benefit to them does not outweigh the potential cost of action. By “cost of action” I mean their personal contribution to the effort is the action and the downside risk if something goes wrong is the cost.

Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (Oxford 2006) at 69, refers to this as a standard “collective action problem.” If an in-house attorney knows something about a problem, to share that knowledge gains only a bit for her, although possibly a whole lot for the department and its client. If knowledge she shares boomerangs, however, she suffers disproportionately. Thus, “each person, following his or her rational self-interest, will tell the group less than it needs to know.” Or will contribute less than the group would expect and like to have (See my post of March 5, 2005: altruism does not overcome reluctance to contribute to knowledge management efforts; Dec. 21, 2005: disappointing levels of contributions to intranets; April 14, 2005: erratic evaluations of outside counsel; June 15, 2006: collective good not sufficient to motivate action; June 21, 2006: technology languishes if it offers mostly collective gain; March 16, 2008: game theoretic view of individual self-serving; Oct. 22, 2008: self-sacrifice for the collective good with knowledge management; Aug. 10, 2009: dispersed benefits for pirates of having slaves onboard, but individualized loss; and Sept. 28, 2009: competitiveness dampens collaboration in-house.).

The upshot? Good programs wither because few people pitch in much. It’s a collective inaction problem.

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The probability that a group of people will arrive at a correct answer to a factual question increases toward 100 percent as the size of the group increases. This is the Condorcet Jury Theorem, as explained in Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (Oxford 2006) at 25, which holds true so long as a few restrictions are satisfied. One is that the people in the group must be independent, which means that they mustn’t influence each other’s opinions; they must be unbiased; most of them must be well-informed enough to have a better than 50:50 chance of getting the correct answer; and the actual answer must be known. These restrictions come from Len Fisher, The Perfect Swarm: The science of complexity in everyday life (Basic Books 2009) at 78-79.

If your law department has a lawyer conference and each lawyer is more likely than not to be correct about a fact, even if ever so slightly, the majority answer when submitted independent will be close to correct. For example, if the question were the average cash bonus awarded the previous year, and most of the lawyers have a sense of that figure, the resulting collective estimate will come very close.

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We have all heard about and maybe even taken part in post-mortems. What about when something good happens? Does any law department systematically celebrate success and examine why it happened? Let’s call such a positive look back a “post-vivo” and thank the Harvard Bus. Rev., April 2011 at 72, for the idea and some guidance.

When a law department pulls off a coup ”it should investigate what led to it with the same rigor and scrutiny it might apply to understanding the causes of failure.” That can be hard for the same reasons it is hard to dissect a blunder: emotional, cognitive and organizational forces undermine the objectivity of the review. Still, a law department that triumphs should sip champaign but not stop there in its thirst for knowledge (See my post of May 27, 2008: post mortems with 7 references; and April 27, 2010: post mortems with 7 references.).

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Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (Oxford 2006) at 55, discusses research about the shortcomings of groups when they deliberate. For example, members tend to become much more confident about their judgments after they talk together, but they are not any more likely to be correct. Second, “deliberation usually promotes uniformity by decreasing the range of views within groups.” Broadly, Sunstein states that “It cannot be shown that deliberating groups generally arrive at the truth” (at 57). Worse, they “do quite poorly at aggregating the information that their members have” (id).

Many readers of this blog may believe it unquestionable that a group improves on an individual when the group makes a decision. Well, question it, as perhaps it is an urban myth of social psychology. This contrary view is something like brainstorming shown to be less than touted (See my post of Dec. 31, 2008: problems with brainstorming.), or diversity in a group giving it headaches (See my post of May 26, 2010: heterogeneity may adversely affect teams.), or smart people not being more creative (See my post of March 21, 2011: no correlation of IQ and creativity.), or committees often stumbling (See my post of Aug. 28, 2006: attack on committee effectiveness.). Common beliefs may be wrong.