Well, not completely. Tax may have a loophole.

Otherwise, it is an accepted practice ideal for the law department to vet all law firms and retain them on matters. A looser leash finds the law department hiring a firm but letting that firm’s lawyers and the internal clients deal with each other directly. An even more diluted control means the law department approves certain firms for certain uses, but leaves it to internal clients to go to those firms as needed.

I favor stout law department control of outside counsel relations. To that end, a major US corporation has this authority etched in the corporate by-laws. “All provision of legal services advice shall go through the Office of the General Counsel.” Do you suppose a lawyer drafted that by-law?

A powerful truth stands out in a sentence from OD Practitioner, 2006, Vol. 38, No. 3 at 52: “ So much of what occurs in organizations feels personal, but it’s not … it’s systemic.” Your environmental lawyer has been performing poorly, but if you diagnose the causes as personal, then your solutions are to fix, fire, rotate, motivate, review, urge therapy -- personal.

If instead you were to consider the systemic pressures on that lawyer – the reorganization underway in the Environmental Safety Group, the SMART goal to resolve three festering Superfund cases, the reporting structure to two Associate General Counsel, the maternity leave the lawyer’s assistant has been on, the location of the lawyer’s cubicle three floors from the rest of the department – the solutions lie less within the hapless lawyer and more within the company and department (See my posts of Sept. 22, 2005 on systems thinking as a discipline; and May 14, 2006 on the Fundamental Attribution Error regarding context.).

The NY Times, Aug. 27, 2006 at 10WK, discusses a smorgasbord of survey methodology risks (See my post of Aug. 29, 2006 on margin of error and subgroups.). False precision and non-randomness deserve comments.

“When a polling story presents data down to tenths of a percentage point, what the pollster demonstrates is not precision but pretension.” An example is BTI’s survey about law department technology (See my post of April 26, 2006 on its survey of “more than 200 lawyers.). The margin of error being more than plus or minus ten, it is misleading to report that respondents most wanted technology solutions to be “user friendly” at the level of 19.3%. BTI should have written much more broadly, like “between one in four and one in five chose “user friendly.’”

The Times also emphasizes how the respondents to a survey must be randomly selected for there to be statistical reliability. For example, if a survey of law departments only collects data from an internet site, randomness evaporates. One reason is that some significant number of in-house lawyers do not venture into the online ether; another reason is that of those who did go on the Internet only some chose to respond, which creates a self-selection bias (See my post of May 14, 2005 for an example of selection bias as well as my fretting about systemic bias in surveys from my post of April 9, 2005 about a survey by Serengetti and Aug. 27, 2005 about a survey of IT respondents.).

Ironic, isn’t it, how I castigate sloppy surveys but crave more law department data.

An excellent commentary on survey methodology, in the NY Times, Aug. 27, 2006 at 10WK, discusses sampling error (See my posts of Dec. 9, 2005 and its description of margin of error; and Jan. 30, 2006 on Kirkpatrick & Lockhart’s “+ 10%” results.). The statistical term “sampling error” only properly applies with a randomly-sampled survey population; the term actually describes the range of approximation of results from a survey. The article explains that there is even a formula for calculating the error range in comparing one survey’s results to another survey’s similar question and results. None of the annual surveys published about law departments has ever done that calculation.

In this post, though, my point concerns subgroups. I wrote earlier about a survey with responses from about 400 in-house counsel (See my post of Aug. 28, 2006 on 34% had fired or considered firing a firm.). Assuming the respondents were randomly distributed – invited to participate and did participate without any pattern – the error rate for that number of responses would be plus or minus five points. Accordingly, the survey should have pointed out that to be 95 percent certain of having gotten a reliable percentage the swing would be between 39% and 29%.

If anyone tried to extend that range to a subgroup, such as law departments larger than five lawyers, the number of respondents in that group would be less than 400 so the range of approximation (sampling error) would increase.

Another instance of a group outside the law department which handles what are arguably legal issues is Industrial Relations. In some companies with unions, Industrial Relations handles labor grievances internally. This is similar to Insurance or Risk Management if it handles worker’s comp claims (See my post of April 23, 2006 on claims to litigation metrics.) and Human Resources if it prepares responses to EEOC charges (See my post of May 10, 2006 about Williams-Sonoma.). An EH&S function might respond to EPA requests and site visits.

Each group develops expertise in the apposite legal issues and turns to the law department only for serious or novel legal problems. The scope and responsibility of the legal function, in the abstract and stated absolutely, cannot be precisely pinned down or defined as a best practice.

The long and unusual site on leadership decision making, hosted by Prof. Hossein Arsham describes a tool to help make decisions: grid analysis. According to Arsham, it is most effective where you have a number of good alternatives and many factors to take into account when you evaluate those alternatives. I have used this technique to rank law firms who have responded to a competitive bid RFP.
First list your options and then the factors that are important for making the decision. Lay these out in a table, with options as row labels and factors as the column headings.

Next, rate the relative importance of the factors in your decision by assigning each a number. You use these numbers to weight your preferences by the importance of the factor. These values may be obvious - if they are not, use a technique such as Paired Comparison Analysis to estimate them (See my post of Aug. 28, 2006.).

Thereafter work your way across your table, scoring each option for each of the important factors in your decision. Score each option from 0 (poor) to 3 (very good). Note that you do not have to have a different score for each option - if none of them are good for a particular factor in your decision, then all options should score 0. Now multiply each of your scores by the values for your relative importance. This will give the scores an adjusted weight. Add up these scores for your options; the option that scores the highest is the best.

Here is how the Fin. Times, March 14, 2006 at 7 explains the concept of “social distance”: “The idea of ‘social distance’, introduced by George Stimmel, the German sociologist, helps leaders identify when they need to be more intimately involved with those around them, and when they need to withdraw and maintain distance.” A general counsel – or for that matter any manager – needs some special recognition and reserve.

Social distance becomes harder to maintain properly when a general counsel has been plucked from peers to head the legal department. Lunchroom camaraderie gives way to some reserve and definite power. “Bosses shouldn’t be friends,” or ogres. Social distance connotes a flexible separation between employees of different ranks.

An idiosyncratic site on leadership decision making, hosted by Prof. Hossein Arsham, explains how paired comparison analysis can help a law department manager work out the importance of a number of options relative to each other. It is particularly useful where you do not have objective data to base the comparison on. This analytic tool makes it easier to choose the most important problem to solve, or select the solution that will give you the greatest advantage. It helps you set priorities where there are conflicting demands on your resources.

First list your options. Then prepare a grid (a table) with each option as both a row and a column header. Use this grid to compare each option with each other option, one-by-one. For each comparison, decide which of the two options is most important, and then assign a score to show how much more important it is. Consolidate these comparisons so that each option is given a percentage importance.

A sacred cow for sizeable law departments is the committee/team. “We need to improve our system to archive old files: let’s appoint a group of six people that will meet every week and recommend improvements!” The amount of advice on how to unleash a productive team would stagger any of us, and I don’t propose to rehash it (See my post of Jan. 4, 2006 about virtual teams; Jan. 30, 2006 about Blue Cross teams.

I propose instead to attack the whole notion that group decision-making brings optimal results (See my post of April 27, 2005 with seven causes of team breakdown.). My experience is that an individual, one solitary person, inevitably has to make important calls. That person may benefit from input from others, but generally speaking large swathes of committee time drain away ineffectually.

Committees hobble because they exponentially raise scheduling difficulties; members do not know their roles and often don’t step up to responsibilities; expectations of consensus bog down even small decisions and cripple daring ones; hours of words go by without any conclusion, and then the unrecorded conclusions are dug up again and the horse beaten even more; laggard performers can draft in behind the more capable; and often the blind lead the blind. Vitriolic, perhaps, and not politically correct, but I have deep reservations about most law-department project teams.

Many encrustations on efficiency are simply bad habits, those the corporate lawyer slipped into for some reason and never scraped away. Three-hole punching all documents so that they can go in a binder; putting all in-box material back in the box before “making a decision.” Highlighting in yellow marker the key language of all letters received. Drafting the first version of contracts on a yellow pad. Starting each day with your e-mail inbox. And endless other barnacles of effectiveness.

Marcia Pennington Shannon writes in Law Practice, Vol. 32, July/Aug. 2006 at 58 that “Experts say that you should plan on at least three to six weeks to incorporate new habits into your routine.” I suppose that pace depends greatly on how frequently during the time period you have an opportunity to alter the rut of experience. Later, she urges people to “choose two at a time, starting with the ones that will make the most difference.” Everyone in a law department can improve if the chains of a few bad habits are broken.