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KMWorld, May 2011 at S4, gives the background of Devin Krugly, currently at AccessData. In the squib it says that he came from Exxon Mobil and “a three-year effort to grow an in-house e-discovery team …” That project included “a year-long process to evaluate potential vendors which led to 24 months of assessing fit and purpose of an e-discovery team and design of an IT structure to support the team’s activities.” Then, I gather, Krugly gathered up all his experience left for a vendor.

Ay, there’s the rub. Just when an employee becomes expert in e-discovery, some vendor or consulting firm poaches them. The lure of more money, variety, and an upward career path persuades those who learn the trade at the expense of with a corporation or law department. As I have written, it is hard to keep talent when dollars and stimulation beckon (See my post of June 11, 2008 #3: hard to keep e-discovery expert.).

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Practical Law, May 2011 at 80, interviews Michael Fricklas, the General Counsel of Viacom. Several points pertinent to law department operations come from that interview.

Most strikingly, the $13.5 billion entertainment company has “approximately 240” lawyers. At nearly 20 lawyers for every billion dollars of revenue, Viacom would top the charts for that metric. Possibly the contracting function, which dominates in such an agreement-intensive industry, swells the ranks of the department. Possibly there are groups of lawyers overseas who are paid much less than their US counterparts. Perhaps compliance lawyers are plentiful and included in the rolls of the law department.

The interview also mentions that the department has “14 lawyers at the corporate level, including two Deputy General Counsel.” Whether all 14 of them report to Fricklas isn’t said, but if the dozen report to the Deputies, then who reports to Fricklas? If they all report to Fricklas, that is a daunting span of control.

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At the obvious level, they are right. Every person being unique, every law department, a fortiori, is unique.

That no-argument point accepted, the felt differences have much less consequence when you look at a department in terms of its processes, structure, culture, software, and other attributes. Then the department shares many traits with other law departments, even more so with those in the same industry and size, and the uniqueness shrinks to little. In management terms, each law department certainly has its quirks, which is to be expected, but overall many departments of roughly the same size, let alone industry, face and resolve roughly the same management issues.

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Guest blogger Jeff Kaplan of Kaplan & Walker LLP writes:

A recently launched benchmarking survey (prepared by Dick Cassin of the FCPA Blog, my partner Rebecca Walker and me) asks respondents to indicate whether the general counsel is the senior official who has been designated to oversee their companies’ anti-corruption compliance program. Thus far more than half have answered no to this question.

Senior management oversight is only one of many anti-corruption compliance program topics covered by the survey. Also included are such challenging areas as board reporting, training third parties, monitoring and compliance incentives, among others.

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On her blog, At The Intersection, Pamela H. Woldow writes about such topics as general counsel, legal project management, alternative fee arrangements and what she perceives to be the rising tide of change. A former in-house lawyer turned consultant, Woldow addresses topics of interest both to law firms and law departments, hence the name at the intersection.

To keep up with this micro-niche of the blawgosphere, here are 19 blogs that current or former in-house lawyers publish.

Rich Baer, former general counsel of Qwest (See my post of March 21, 2011: Reliance on Counsel.).

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Social scientists have long recognized that most of us just naturally believe that the people around us look at the world as we do and behave as we would. We take for granted that we are normal and others travel to the beat of the our drum. This assumption academics call the egocentric bias.

Cass R. Sunstein, Infotopia: How Many Minds Produce Knowledge (Oxford 2006) at 80, refers to this cognitive blinder and made me think how often it rears up in law departments. When we negotiate, we may mistakenly assume a similar set of values and desires on the other side. When we evaluate someone’s performance, the egocentric bias may obscure from us the other person’s worldview. When we talk or write, we unwittingly follow the form that suits our own style and perspective, ignorant of the other side’s.

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“Decision-makers can digest only so much information, and only so fast; still, executives tend to request much more information than they actually use.” This observation from MIT Sloan Mgt. Rev., Spring 2011 at 57, resonated with me. It is so easy to send minions to mine data. As they say, “Nothing is impossible for the person who doesn’t have to do it.” But the cost in morale and loss of efficiency can be very high.

General counsel should be careful about what information they ask for, because the request – possibly an idle or lightly considered wonder – can set off a storm of activity behind the curtain

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Hard on its explanation of “good failures,” an article in the Harvard Bus. Rev., April 2011 at 54, summarizes why organizations struggle to analyze failure constructively and learn from it. One reason is “because examining our failures in depth is emotionally unpleasant and can chip away at our self-esteem.” From the general counsel on down, no one looks forward to criticism. Later, the authors add a second reason: “analyzing organizational failures requires inquiry and openness, patience, and a tolerance for causal ambiguity.” Might any of those attributes be in short supply among in-house lawyers?

On the cognitive side, we all favor confirming evidence and pooh-pooh facts that challenge our beliefs. We know why the deal went south so don’t upset our self-protecting construction of reality. Fourth, “We also tend to downplay our responsibility and place undue blame on external or situational factors when we fail, only to do the reverse when assessing the failures of others – a psychological trap known as the fundamental attribution error (See my post of May 14, 2006: fundamental attribution error; and July 10, 2007: fundamental attribution bias.). “I won the trial!” or “The judge was biased, the jury went squirrely on me, that e-mail surfaced too late…..” As a last reason we don’t benefit from errors, the authors fault most post-mortems for failing to dig down to second- and third-order reasons for the lapse. “Joe blew it when he didn’t respond on time,” instead of realizing that the service of process company had a wrong forwarding rule or the new office had not been trained in the proper procedures for complaint processing.

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Nine reasons for “failure” are listed in the Harvard Bus. Rev., April 2011 at 50, and three of them are commendable. This seeming paradox has strong significance for managers of in-house lawyers. We can praise failure if someone deliberately and thoughtfully tried something new and it didn’t succeed (referred to as “Exploratory Testing”). After careful analysis, let’s suppose, we retain a firm we have not used before but for whatever reasons the matter they handle goes bad.

Or a team in a legal department sets up a knowledge management experiment, with good intentions and as much planning as they could muster, but the idea just doesn’t take hold “Hypothesis Testing”).

Finally, also in the benign category of failure is “Uncertainty” – the most common failure that does not deserve censure.“ It is “A lack of clarity about future events causes people to take seemingly reasonable actions that produce undesired results.” The hard-won indemnification clause results in a contentious, time-consuming monitoring or litigation. Who could have known?

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A general counsel faced with twenty candidates for an open position, or two dozen firms of which one can be retained, might despair at the time drain. Do you have to see them all or is there a golden number? Cheer up! Mathematicians have figured out how many you should interview. John D. Barrow, 100 Essential Things You Didn’t Know You Didn’t Know: Math Explains Your World (Norton 2008) at 86, describes the reasoning.

The bottom line is that with 100 candidates, “The optimal strategy is to see 37 of them and then pick the next one that we see who is better than any of them and then see no one else.” You need to know how many total candidates you might see. And you must keep score of those you see up to the tipping point. For all such sequential choice problems, the right point is to see 37 percent of the candidates and then select then next one that is better than any that preceded.

By the way, the book by Barrow has been fertile (See my post of April 15, 2011: to calculate how many documents were not found; April 28, 2011: geometric means; April 28, 2011: a trick to help a weak candidate win; and April 29, 2011: statistical error.).