More than three million cases from Fastcase now in Google and Yahoo! search results. An earlier post talks about sources of case law information (See my post of Jan. 13, 2006 and references to several providers.). Legal Mgt., Vol. 26, Jan./Feb. 2007 at 76 introduces (for me, at least) the term “dark Web” content -- "content previously available only behind subscription walls and not available to Web crawlers." The legal publisher Fastcase Inc. has made available for searching by the general public its online law library, with more than 3 million cases dating to 1754.

Law departments that promote a legal service provider. An ad for BNA in Corp. Counsel, Vol. 13, Dec. 2006 shows Gail Lione, general counsel of Harley-Davidson, and highlights her quote: “BNA helps us provide accurate, insightful advice.” (See my post of Sept. 21, 2005 about what a law department can gain if it helps market a vendor.).

Conferences expressly for corporate counsel. This blog has noted several conferences. Another one has surfaced, the 6th Annual Corporate Counsel Conference, the International Bar Association, London, Feb. 21-23, 2007.

Diversity expectations. I admire the candor of Eric Cohen, in-house counsel at Terex Corporation, who spoke at a Legal Marketing Association event in November 2006. According to Amy Campbell’s Web Log, Cohen was asked about diversity as a differentiator of law firms. No hypocrisy with Terex, he said, “Diversity is difficult. We don’t meet it yet internally, so we don’t impose it as a requirement” (See my post of Dec. 11, 2006 with a survey and low marks for diversity.).

Jeffrey Pfeffer and Robert I. Sutton, Hard Facts, Dangerous Half-Truths & Total Nonsense: Profiting from Evidence-Based Management (Harvard Bus. School Press 2006) at 110-111 make the point that trying to increase a person’s motivation – say, with the carrot of a large bonus if some goal is achieved – can’t improve ability, only effort. Compensation schemes will fail if they “presume greater effort will bolster performance – without system redesign, information sharing, or upgrading people’s skills.” Just trying harder won’t make much difference.

Dangling money at the end of the year doesn’t have the targeted effectiveness general counsel want if the lawyers who chase the rabbit do so with no better training, tools or systems (See my posts of Jan. 20, 2006 on mandatory CLE; May 10, 2005 on reimbursement of CLE expenses; and May 1, 2005 on the obligation to disseminate CLE training.). Bonuses alone might push a lawyer to work harder, but not smarter.

Forgive the bad pun, but there is a new meaning to “IP replacement”: “Historically, the general counsel has handled IP, but that’s an antiquated model,” says an IP lawyer quoted in IP Law&Bus., Jan. 2007 at 16. The arrival of the IP “czars” – at companies such as Hewlett-Packard (Damon Matteo), General Electric (Q. Todd Dickinson), Boeing, Microsoft and Yahoo! (Joseph Siino)– asserts a broader perspective on IP management than the narrower view legal departments hold. IP assets are a multidimensional issue, influencing fundamental business practices and procedures, marketing strategy, legal policies and practices, and igniting heated political agendas. Writ so large, the IP message shouldn’t be written by mere lawyers.

Many posts on this blog concern the scope of a general counsel’s responsibilities, but until now I had thought IP legal protection was sacrosanct. The article, however, introduces a broader view on the “strange beast” of enterprise-wide IP, and puts on the table for discussion whether it should report to legal, R&D, a chief technology officer (CTO), CEO or COO.

By contributing author Brad Blickstein, Blickstein Group, on legal service providers:

It seems that legal service providers, especially in process-heavy areas like e-discovery, come from three different schools of technology selection. There’s the “agnostic” school: “We may have our favorites, but we can work with anything.” There’s the “build it” school: “We use our own technology.” And finally the “preferred partner” school: “These are the partners we work with all the time.” Many are a combination.

Each has its advantages and disadvantages. Agnostics claim that they can best work with technology you already like–or they can recommend the “best in breed”–but it may be hard to know which firm to hold accountable. Builders can be held fully accountable, but their technology may not be as good as some provided by a company that specializes in building those applications. Partners seem like a good compromise, but very often companies choose their partners not only for quality but also for financial reasons (e.g. revenue sharing arrangements).

What’s a buyer to do? At minimum, make sure that whomever you write the checks to knows they’ll be accountable. And if they are recommending other service providers or partners, probe carefully as to why.

A hardy band of practitioners carry the torch for artificial intelligence and rules-based legal drafting or analysis. Among the few whom I know are Marc Lauritsen (Capstone Practice Solutions, Harvard, MA and see my post of Jan. 28, 2007.) Eric Little is another, who is now at Wilson Sonsini but who twenty years ago formed Analytic Legal Programs and continues to work in the field of legal document assembly. Seth Rowland at Basha Systems is also a veteran in the field of rules-based logic for document construction.

According to Dan DiPietro of Citigroup's Private Bank group, US law firms are on a road that has six levers that drive profitability. Hearing DiPietro’s presentation on this model, it occurred to me that as to their key law firms, inside lawyers can and should directly influence each of those levers (See my posts of June 15, 2006 about meddling in firm management; and July 5, 2006 with several forms of such intervention.). Other posts on this blog have taken up aspects of these drivers from the perspective of law departments and what departments can to do affect them; some of them follow the six drivers below.

1. Productivity, which is the number of hours billed by a lawyer, is squarely within the sights of law departments (See my post of Oct. 20, 2005 on how many total hours law firm lawyers bill.).

2. Realization is something law departments can reduce or increase because they negotiate discounts and scrutinize bills to challenge excessive charges (See my posts of Sept. 14, 2005 on the time spent on invoice review; and Aug. 8, 2006 on tiered discounts from hourly rates.).

3. Leverage, while something that law departments sometimes push for, is always an influenceable characteristic of a law firm (See my posts of Sept. 25, 2005 on firing a firm for under-staffing; Dec. 8, 2006 on core teams; and Nov. 22, 2006 about use of paralegals by firms.).

4. Expenses, what the law firm pays to operate and eventually passes through to its clients, is another cost driver that law departments can influence (See my posts of Sept. 13, 2005 on online research expenses.).

5. Hourly rates are most emphatically subject to scrutiny and approval by law departments (See my posts of Nov. 13, 2006 on rationale to grant requests for rate increases and discounts; Nov. 21, 2005 on need for law firms to show productivity; and March 12, 2006 on billing rate differentials by lawyer within the same class year.).

6. Volume, a piece of profitability that is quite obviously open to influence by law departments (See my post of Aug. 24, 2005 about Marriott and its equal division of volume by firm.).

Cognitive scientists define two sorts of knowledge, declarative and procedural, according to Arthur I. Miller, Insights of Genius: Imagery and Creativity in Science and Art (Springer-Verlag 1996) at 271. Declarative knowledge refers to static, fact-like representations that serve as innate structures and can be propositional or imagistic. An in-house lawyer who knows that Paragraph 14(a)(3) of a contract governs choice of law questions exhibits declarative knowledge. .

Declarative knowledge is about facts and things; it is operated on by processes, which is the domain of procedural knowledge. How to give notice to the other party under the contract would be in our example a counterpart procedural piece of knowledge. The distinction between declarative and procedural knowledge is akin to the difference between knowing a fact and knowing how to do something. Knowledge management efforts and training in law departments should appreciate the difference.

Law departments will find their bill review process easier to slog through if the bills they receive from outside counsel have a similar format. This does not mean that each bill in its entirety must mirror some standard format, but that useful information with a common definition is available in one place. For example, if the law department wants to know effective billing rates by levels, it should specify where to state those figures and how to calculate them. A coversheet on the invoice prepared by the firm’s time and billing system might suffice for providing the requisite data in the right place.

An additional benefit from standardized data is that the law department can more readily compare performances across law firms. Eventually, it will be possible to use OCR devices to input the key data (See my post Sept. 22, 2006 for more ideas on this future.).

According to Jeffrey Pfeffer and Robert I. Sutton, Hard Facts, Dangerous Half-Truths & Total Nonsense: Profiting from Evidence-Based Management (Harvard Bus. School Press 2006) at 128, the extrinsic incentives bias is the “tendency to over-estimate how much employees care about extrinsic job features such as pay and to underestimate how much employees are motivated by intrinsic job features like being able to make decisions and have meaningful work.” For corporate lawyers, titles and the layout of offices are extrinsic job features, while challenging work, autonomy, and professional growth are intrinsic (See my post of Feb. 16, 2007on Maslow’s hierarchy of needs.).

As to one particular form of extrinsic incentive – bonus awards – Pfeffer and Sutton come down hard. “[W]hen work settings require even modest interdependence and cooperation, as most do, dispersed rewards [differential bonus awards] have consistently negative consequences on organizations,” (See my post of Jan. 15, 2007 on three pernicious effects of bonuses.).

According to the “under-determination thesis” there can be an infinite number of scientific theories to describe any set of experimental data. Arthur I. Miller, Insights of Genius: Imagery and Creativity in Science and Art (Springer-Verlag 1996) at xii. This esoteric idea probably means that there could be an infinite number of explanations for any set of benchmarking data.

Point two. "All data, regardless of their source, can be discussed and evaluated only within a framework of knowledge. Philosophers refer to this observational situation as the ‘theory-ladeness’ of data" (at 12). Miller writes later, "There is no theory-neutral language with which to describe observations. Theory and data are necessarily intertwined, starting at the point where we even select what to observe.” I take this point to be that no once can pick out, let alone describe, something about a law department’s operations without being directed, knowingly or unknowingly, by some underlying construct of what’s important or some value set – a theory (See my posts of May 31, 2006 about how values underlie all management decisions; and Sept. 29, 2006 on some concepts from philosophy as they apply to law department management.)