Writing is a crucial skill of in-house lawyers (See my post of Feb. 5, 2009: writing with 6 references.). Software can analyze a person’s writing and suggest how to improve it. One common method describes a document in terms of the school level need to understand your prose. Seven tools that do exactly that are available on Readability.Info.

Not surprisingly, I directed the site to look at a recent patch of my posts. What follows are the explanations of the formulas that produced these scores, which I took from the website of Readability but shortened and edited.

The Kincaid Formula, developed for Navy training manuals, ranges in difficulty from 5.5 to 16.3. It is probably best applied to technical documents, much like mine are probably technical (The formula is 11.8*syllables/wds+0.39*wds/sentences-15.59.). My Kincaid was 13.5.

Automated Readability Index (ARI) is typically higher than Kincaid and Coleman-Liau, but lower than Flesch (4.71*chars/wds+0.5*wds/sentences-21.43). My ARI was15.7 (a junior in college?), higher than Kincaid.

Coleman-Liau Formula usually gives a lower grade than Kincaid, ARI and Flesch when applied to technical documents (5.89*chars/wds-0.3*sentences/(100*wds)-15.8). My Coleman-Liau was 13.3.

Flesch’s formula is based on school texts covering grades 3 to 12. The index is between 0 (hard) and 100 (easy); standard English documents average 60 to 70. (206.835-84.6*syll/wds-1.015*wds/sent). My Flesch Index was 48.0, so on the difficult side.

Fog Index gives a school grade. A level above 12 indicates the writing sample is too hard for most people to read (0.4*(wds/sent+100*((wds >= 3 syll)/wds)). My Fog Index was 16.9 so I apologize to all readers who can’t make sense out of what I offer.

Lix formula employs a mapping table as well (wds/sent+100*(wds >= 6 char)/wds). My Lix was 56.0, which translates to 11th grade.

SMOG-Grading gives a school grade (square root of (((wds >= 3 syll)/sent)*30) + 3). My SMOG Grading was 14.0, or mid-way through college.

Put simply, my writing style demands a lot from readers. But then, it should, because you are all smart and well educated!

Michael Mauboussin, Think Twice: Harnessing the Power of Counterintuition (Harvard Bus. Press 2009) at 4-6, describes three particular delusions which stymie our efforts to reach good conclusions. We over-rate our own abilities, prospects, and influence, which makes us more difficult to reach objective decisions.

One delusion is the illusion of superiority whereby people have an unrealistically positive view of themselves. Sadly, the least capable often have the largest gaps between what they think they can do and what they are actually able to achieve. General counsel prick this illusion in almost every performance review they give.

A second is the illusion of optimism. "Most people see their future is brighter than that of others." How many litigators in law firms foresee a thumping defeat? How many journeymen JDs admire themselves as up-and-coming CLOs?

Finally, there is the illusion of control. Many people falsely think that they can influence what happens around them even in complicated situations. Even the most powerful lawyer is but a cog in a massive wheel.

Michael Mauboussin, Think Twice: Harnessing the Power of Counterintuition (Harvard Bus. Press 2009) at xix, counsels us not to overdo information gathering.

"Indeed, typical decision-makers allocate only 25 percent of their time to thinking about the problem properly and learning from experience. Most spend their time gathering information, which feels like progress and appears diligent to superiors, but information without context is falsely empowering. If you do not properly understand the challenges involved in your decision, this data will offer nothing to improve the accuracy of its decision and actually may create misplaced confidence.”

In-house counsel often want more facts before they make a call, we all want more facts. But Mauboussin’s point is solid: metathinking – how do I frame this decision and make it more effectively – increases the odds in favor of successful judgment more than continued data collection.

Thomas Davenport, in the Harvard Bus. Rev., Vol. 86, Nov. 2009 at 116, suggests that organizations can improve decision making in four steps. Put in terms of a legal department, they are:

1. “Managers should begin by listing the decisions that must be made and deciding which are most important.” So, in a major lawsuit or corporate transaction, identify which decisions need to be made. “Without prioritization, all decisions will be treated as equal – which probably means that the important ones won’t be analyzed with sufficient care.” This advice reminds me of a key part of setting an agenda for a meeting: allot time to topics in relation to their importance.

2. “[A]ssess the factors that go into each [decision].” So, the responsible in-house lawyer needs to decide who plays what role in major decisions (See my post of Nov. 23, 2008: RACI roles.). How often does the decision come up? What information do we have or need to be able to make the best decision under the circumstances? How well is the decision typically made (See my post of May 27, 2008: post mortems with 7 references.).

3. Having narrowed down your list of decisions and examined what’s involved in making each, you can design the roles, processes, systems, and behaviors” your law department should be using to make them. Davenport doesn’t spell out many details on this third point, which boils down to “improve your decisions.”

4. Give lawyers the tools and assistance to “decide how to decide.” Davenport describes as one example training at Air Products and Chemicals for how to decide the way to resolve various issues, accountabilities, and roles. Other companies, such as Chevron, enlist “decision experts” like decision-analysis groups.

A framework, yes, and Davenport gives examples from two companies and thumbnail descriptions of seven approaches to making decisions. His article comes from his forthcoming book, Analytics at Work: Smarter Decisions, Better Results (Harvard Bus. 2010).

Someday soon, in-house counsel might wear an emotion-sensing system designed to help them keep a cool head when negotiating, litigating, or dealing with obnoxious people. The Rationalizer, still under development by Philips, consists of a bracelet that measures the wearer’s galvanic skin response. This response measures the electrical resistance of the skin that can be caused by various stimuli. Your skin knows when you are upset.

According to an article in the Economist, October 17, 2009 at 85, "the bracelet transmits its measurements to the ‘EmoBowl’, a saucer-like object which displays a moving light pattern to illustrate the user's mood. If the person becomes emotionally aroused, the light pattern becomes more intense and turns from a soft yellow to orange." If it reaches deep red, the lawyer should count to 10 and try to calm down. Such an obvious alarm will not do in plain view amidst a tense meeting, but more subtle reminders, such as a dial on the bracelet, presumably could alert the wearer to take a break.

This blog aspires to bring more understanding to the art of legal department management. To that end, I have tried to define relevant terms, sketch applicable concepts, and organize the 4,900 posts in ways useful to general counsel. The hill is steep, however, and I have wondered often whether the summit is attainable – something near comprehensive insight into how to run an effective corporate legal team.

A cluster of insights into this challenge comes from George A. Reisch, How the Cold War Transformed the Philosophy of Science (Cambridge Univ. Press 2005) at 28-30. Reisch summarizes views advocated by Otto Neurath, a 20th century philosopher of science. Neurath’s views feel correct to me, in truth profound and useful, so I summarize them very lightly and apply them to the managerial world of general counsel.

Platonic essence versus meaning holism. "Words and sentences gain meaning in virtue of connections to other words and sentences.” Our language does not draw on some extra-linguistic real world for meaning. No Platonic essence of a word or term exists; rather, language is socially constructed and words depend on other words for context. We can’t nail down in the abstract the meaning of a managerial idea expressed in words. None of the concepts central to general counsel regarding management clear, irrefragable, and precise (See my post of Feb. 1, 2009: ten most important concepts of management for GCs; and April 5, 2009: ten next most important concepts.).

Pluralism versus absolutism. “Absolutists believe that concepts, statements, and scientific theories have singular, exhaustively specifiable meanings." Pluralists disagree and in light of meaning holism believe that a word or statement has plural and ambiguous meanings, depending on who says them and which meanings and semantic threads they have in mind. What we read and hear about law departments will always float in a sea of meanings and interpretations. “Value,” to cite but one vogue and vague concern, represents a blurred mishmash of notions.

Empiricism versus systematization. "The same areas of science could be systematized in substantively different ways that, for example, connected to or incorporated concepts from other parts of science and had, as a result, different practical strengths." Additionally, no systematization can ever be comprehensive. The categories in which I place posts make up a semblance of a system, but many other organizing schemes could encompass law department management (See my post of June 23, 2009: time to rethink my categories.). But even if some framework appears to cover the waterfront, pieces will still wander offshore and inland.

Neat structure versus encyclopedism. Neurath disagreed that there would ever be a unified science that was a comprehensive, systematic, and hierarchical ordering. No single foundation exists which ties together all the sciences. Instead he advocated an encyclopedia as the better model. Such an assemblage of explanations and inter-connections will evolve and change; no one will prove a final, definitive, deductive, and true statement of science. If my blogging has shown anything, it is that inductive, emergent realizations are the best general counsel can hope for (See my post of Dec. 5, 2007: the emergent, inductive path I follow.).

Decisionism versus pseudo-rationalism. Neurath did not believe that reason (rationality) can “analyze any problematic situation, determine and rank outcomes, and so relieve us of our decision-making responsibilities." Instead, he insisted, we must live with pluralistic ambiguity in our language and must continue to make ongoing and unending choices about where and how to connect and unify what we know. Often no formula for reasoning avails general counsel; they have to make decisions as best they can about how to run their department.

A few offices nestled in law departments ooze the serene contemplativeness of a Japanese rock garden: calm, ordered, soothingly lit, an oasis in chaos. As you relax, you notice it isn’t incense burning, or the Monet poster, or even the indirect lighting with a tinted bulb, not even the lulling lava lamp, or the bowl of chocolates.

No, indeed, the quiet comes from the tiny waterfall in the corner, tinkling and pacifying. Water’s primeval lilt rivals music, which "has charms to soothe a savage breast." The hint of flowing water washes over jangled nerves and like “sleep that knits up the ravell'd sleeve of care” provides “surcease from sorrow.” That burble helps “when to the sessions of sweet silent thought” we all sometimes yearn to slip.

The susurrus of a stream composes the mind and lets well up pleasure, like poetry (Jan. 3, 2008: no citations to poetry in these posts; and Aug. 31, 2009: a haiku on legal management.).

It has been a long time since I assembled the posts on this blog about creativity (See my post of Oct. 29, 2006: creativity with 11 references.). The topic is too important for comments about it to lie dispersed and unappreciated so let’s see what has been said since then.

Several have concerned law firms and their creativity or lack of creativity (See my post of Feb. 11, 2007: lack of creativity by law firms; March 11, 2007: fixed-fee arrangements haven’t spurred creativity in firms; July 28, 2007: ranking of law firms as to creativity attribute; and July 19, 2007: creativity of outside counsel as a high-ranking attribute in selection.).

Other posts add various views on creative lawyers or techniques to increase creativity (See my post of Feb. 16, 2006: smart lawyers but who aren’t inventive; Dec. 31, 2008: “systematic inventive thinking”; April 9, 2009 #4: E/R/A approach; July 16, 2009: misguided elevation of creativity over effectiveness; Nov. 6, 2007 execution matters more than innovation; Jan. 14, 2007 #1: two references in books about creativity; Dec. 3, 2007 #2: law school with center for creative problem solving.). Examples of creative thinking crop up (See my post of May 3, 2007: think outside the bun for RFPs; and May 28, 2007: Addelshaw Goddard and online TV.).

Finally, the technique of brainstorming has its own metapost (See my post of June 1, 2009: reverse brainstorming; and Dec. 31, 2008: brainstorming with 5 references.).

An article in Asian-Counsel, e-edition, Vol. 7, July/Aug. at 18, gives advice to in-house attorneys who encounter a legal question or task that is unfamiliar to them. The three choices are cleverly summarized:

“Such in-house counsel generally have three options available to them: finding someone else to do the work (the “trade-off”); farming out the situation to external counsel (the “farm-off”); or simply ignoring the situation (the “brush-off”). Put differently, unless you dive in and learn something about the issue, you can delegate, instruct, or pray.

The technique of creating sets of realistic conditions, called scenarios, and thinking through their implications can significantly help managers prepare for the future. I have written previously about scenario applications (See my post of March 25, 2005: case studies of risks; Dec. 9, 2005: scenario planning for law departments; Dec. 20, 2005: real-options analysis; Jan. 4, 2006: intelligent agents; Feb. 1, 2006 #1: Herman Kahn and the origins of scenarios; April 1, 2007: story-telling, aka scenario building; Nov. 8, 2007: bonuses for law firms; April 22, 2008: limits on quantitative case analysis; and July 9, 2009: budget scenarios instead of single figures.).

Decision-analysis software and techniques complement scenarios (See my post of May 15, 2005: Monte Carlo simulations; Oct. 24, 2005: decision analysis and Bruce Beron and Marc Victor; Jan. 17, 2006: other aspects of decision trees; June 18, 2007: belief nets as an improvement on decision trees; Feb. 8, 2006: a step to prepare for mediation; April 2, 2006: Predix; April 22, 2008: limitations on quantitative analysis of litigation; Feb. 22, 2009: a simple explanation of decision trees; and June 17, 2009: Jacob Ruytenbeek’s decision-tree software.).