People process the effects of inflation poorly, which gives rise to what economists call the “money illusion.” According to Scientific Am., Vol. 301, July 2009 at 78, as our brains have evolved we are not able to process effectively the dilutive effect of inflation. If billing rates of partners shock in-house counsel, their ventromedial prefrontal cortex (fetchingly dubbed the VMPFC) is to blame. It does not accurately take account of the fact that the nominal rate is high but the real cost is lower because of inflation.
Anyway, while on the topic of neuroeconomics – the study of the brain and how people process financial information – I would not want to short-change the nucleus accumbens, the area of the brain researchers believe is the seat of greed.
One problem with brainstorming is that it forces the process of creating new ideas. “Here we are, it’s 9:30 AM, so get wild!” Few minds do breakthrough somersaults on demand (See my post of Feb. 20, 2007: sleep on it to make a good decision.).
Reverse brainstorming takes a different approach. Meet to lay out the problem and then urge people to think about the problem and possible solutions during the days until the next meeting. If any ideas come to them, they should write them down. At the next session, the members bring together those thoughts and consider them.
In summary, Rotman Mag., Winter 2009 at 71, explains that “reverse brainstorming, then, is a meeting to collect brainstorming ideas, rather than create them" (See my post of Dec. 31, 2008: brainstorming with 5 references; Jan. 4, 2009: electronic brainstorming with decision support software; April 6, 2009: brain-writing 6-3-5; and April 27, 2009: eleven suggestions for how to brainstorm.).
The Rotman Mag., Winter 2009 is devoted to “wicked problems.” One article (at 19) sets out six characteristics of wicked problems, all of which together suggest that for managers of sizeable internal legal functions wicked problems abound.
“You don't understand the problem until you have developed a solution. Every solution that is offered exposes new aspects of the problem, requiring further adjustments to the potential solutions. There is no definitive statement of ‘the problem’; these problems are ill structured and feature an evolving set of interlocking issues and constraints.” Just think of the challenge of “reducing legal expenses.”
“There is no stopping rule. Since there is no definitive ‘the problem,’ the results are no definitive ‘the solution.’ The problem-solving process ends when you run out of resources such as time, money or energy, not an optimal solution emerges.” Figuring out best practices comes to mind as an example (See my post of March 20, 2009: seven reasons why I question best practices.).
“Solutions are not right or wrong. They are simply ‘better/worse’ or ‘good enough/not good enough.’ The determination of solution quality is not objective and cannot be derived from following a formula.” Most general counsel can hope for little more than “satisficing,” a term cognitive scientists use to describe the tradeoffs we make when we think (See my post of Sept. 9, 2008: intractable problem of clients’ appropriate use of in-house lawyers; and June 24, 2007: intractable of career paths.).
“Each is essentially unique and novel. No two wicked problems are alike, and the solutions to them will always be custom designed and fitted. Over time we can acquire wisdom and experience about the approach to wicked problems, but one is always a beginner in the specifics of the new wicked problem.” No two law departments are alike, so their challenges are not alike and all solutions are hand-crafted.
Every solution is a ‘one-shot operation.’ This is the ‘Catch-22’ of wicked problems: you can't learn about the problem without trying solutions, but every solution is expensive and has lasting consequences that may spawn new wicked problems.” Managing lawyers can never anticipate all the ripples from an operational decision (See my post of Aug. 1, 2006: second-order consequences; Aug. 28, 2005: unintended consequences; Dec. 17, 2006: all practices have pros and cons; Aug. 22, 2006: the economics of error; July 10, 2007: well-intentioned actions that bring punishment and eight examples; July 28, 2008: decision map helps person think about possible consequences; Aug. 29, 2008: unanticipated effects if general counsel improve their management skills; and Sept. 9, 2008: opportunity costs, an economist’s way to describe tradeoffs.).
There is no given alternative solution. “A host of potential solutions may be devised, but another host are never even thought of. Thus it is a matter of creativity to devise potential solutions, and a matter of judgement to determine which should be pursued and implemented.”
Two previous posts outlined five suggestions for how best to conduct brainstorming sessions (See my post of Oct. 30, 2006: rules, facilitator, preparation; and Nov. 25, 2006: private ideas before and mull afterwards.):
- Have rules, such as an agenda and guidelines for how to participate
- Engage a trained facilitator from outside,
- Push participants to read, think, and prepare ahead of time;
- Write ideas privately before the meeting
- Mull ideas afterwards
Wendy Werner, writing in Law Practice, Vol. 35, April/May 2009 at 48, adds several general guidelines for brainstorming sessions.
Limit the number of participants to 10 or 12.
“Engage a diagonal slice” of employees across units and levels
Preserve the ideas the brainstorm group generates, although without attribution
“Ask for more ideas”. Werner makes the point that people are often shy, wary of rebukes, constrained by what they know or assume; keep urging the brainstorm group to come up with more ideas and give them time.
“Create a parking lot for unrelated concepts.” Not every idea is on target for what the group has been charged with doing. Don’t lose the good ideas, however, by failing to record them in the parking lot.
“Schedule a break between generation and selection.” The second stage, after the group comes up with a flood of ideas, might be a day or two later even. The intervening period gives them time to digest the ideas and improve them.
Brainstorming, done well, can stimulate wonderful ideas (See my post of Dec. 31, 2008: brainstorming with 5 references; Jan. 4, 2009: electronic brainstorming with decision support software; and April 6, 2009: Brain-writing 6-3-5 as a technique.).
If you have a large meeting, perhaps a Town Hall or an off-site gathering, it may be useful to break the plenary group into smaller groups. The smaller groups can push the discussion ahead and then report back to the larger group. Here are some suggestions for how to succeed with break-outs (See my post of Feb. 12, 2008: retreats and conferences with 8 references.).
Have sufficient rooms or locations for the splinter groups; be mindful of the noise that groups make so don’t locate them too closely together.
While everyone is still in the full group, put the logistics up on the screen or an easel. Clearly, slowly, explain who should meet where, how long to meet, the need to choose a spokesperson, and other details – and then repeat them. Ask for questions.
Allow at least 10 minutes for the large group to segment into the smaller groups and get underway, more time than you think.
Tell the groups that at the start they need to pick at the start a person who will take notes and report back to the large group.
Give very clear goals to groups and suggest how to report out their conclusions.
Stock the group meeting area with an easel, wall tape and markers.
During the break-outs, walk around and field questions on the assignment.
If you let attendees choose their break-out group, count them as the numbers tell you about the perceived importance of the topics.
In the play back of key ideas to the entire group, give permission to speakers to piggyback on points made before them.
Consider scheduling lunch or a break after the break-outs end, in case some groups want to stay longer.
To learn more about my fixed-price presentations at retreats, click here.
The subject of knowledge, the most important asset of an in-house lawyer, ultimately reduces to philosophical ruminations. Ruminations on my part have sometimes resulted in posts on this blog. A few draw on ideas from individual philosophers (See my post of Aug. 27, 2008: John Rawls’ original position; March 19, 2006: Willard Quine and the fact/value dichotomy; and Oct. 10, 2008: Michel Foucault on power.).
For other posts, broad philosophical ideas shape them (See my post of Sept. 22, 2005: our inability to comprehend complexity; Sept. 22, 2008: post-modernism and its tenets; Feb. 22, 2009: linguistic philosophy of “action verbs”; Sept. 29, 2006: four concepts from philosophy as they apply to law department management; April 2, 2009 #4: special pleading; and Feb. 21, 2007: under-determination theory.).
I have also written about a philosophical field, ethics (See my post of May 23, 2008: values with 12 references.).
Management concepts are broad ideas I chose and ranked ten of them in one post (See my post of Feb. 1, 2009: ten most important concepts: client, decisions, information flow, objectivity, productivity, quality, risk, structure, talent, and value) and then bit off the next ten (See my post of April 5, 2009: benchmarks, collaboration (teamwork), delegation, empowerment, knowledge management, processes, professional development (CLE), priorities, recognition and rewards, and technology (software).).
Other management concepts relevant to general counsel include alignment, accountability, authority, communication, conflicts of interest, evaluation, global, infrastructure, high performer, leadership and management, matter, mistake, priorities [core comp], reporting, satisfaction, strategic, systems, and tools.
Possibly this is intellectual navel-gazing (See my post of July 14, 2008: no useful distinction between words and concepts; and June 13, 2006: words can be defined but concepts must be interpreted;.). Perhaps, but this series is about clarity of thought and expression (See my post of Nov. 26, 2006: memes; Aug. 29, 2008: professionals may not be intellectuals; Sept. 21, 2008: concepts hover in a multi-dimensional space; Sept. 22, 2008: post-modernism; April 9, 2008: twins, braids, and DNA; June 22, 2008: differences between tools, processes, and concepts; Jan. 4, 2009: contrasting pairs of thematic concepts; and Jan. 1, 2008: we hypostatize and simplify complex ideas.).
Any blogger who uses hendiadys (a rhetorical figure in which a complex idea is expressed by two words connected by a copulative conjunction) is a blogger after my heart and soul (1).
Willem Wiggers, on his blog WeAgree, started a post with this unusual word, so I picked up the glove and challenge and tried my hand and fingers at a few hendiadyses.
Law departments are the brains and brawn (2) of many companies, ready and willing (3) to handle everything from complex issues to simple NDAs. The firms they select are head and shoulders (4) above competitor firms and the service they provide is fast and furious (5). Partners at law firms, the high and mighty (5), give counsel and advice (6) to the inside lawyers, those brave and true (7).
With all these examples of hendiadyses, you get the point and meaning (8).
Brainwriting 6-3-5 alters classic brainstorming in ways that encourage equal participation from all team members by having them write their ideas rather than say them. The technique is described in David Silverstein, Philip Samuel, and Neil DeCarlo, The Innovator’s Toolkit: 50+ Techniques for Predictable and Sustainable Organic Growth (Wiley 2009) at 101. The name of the technique comes from its essential idea: six people each write down three ideas in five minutes and keep going. A focus group in a law department would do well with this tool with a slightly larger or smaller number of people.
Let’s try as an example the problem of how to speed up payment of invoices to qualify for a prompt payment discount. Each person in a group of six (more or less) takes five minutes to write on a worksheet three ideas for how to solve that problem. The facilitator then passes the worksheets randomly to the next person who can either add three new ideas, build on any of the ideas listed, or do both. Repeat that cycle until every participant has worked on every worksheet, which could generate as many as 108 ideas (6 people times 6 worksheets times 3 ideas).
The final step as a group is to discuss, clarify, refine, and combine similar ideas, then select those you wish to pursue further (See my post of Dec. 31, 2008: brainstorming with 5 references.).
A portion of the 4,200 posts on this blog are cerebral. For example, the ones I picked for this collection touch on deep and deeply significant ideas.
Perhaps the most intellectually significant idea dealt with by this blog is neuroscience (See my post of June 22, 2008: neuroscience with 32 references.).
Three other topics for deep thinkers have to do with knowledge: the fallacy of induction; post-modernist beliefs, and no best practices (Sept. 22, 2008: post-modernism and law department management; Aug. 22, 2006: fallacy of induction; and Feb.14, 2009: best practices with 24 references and one metapost.).
Another three major ideas involve the basis for managers’ actions: values, causality, and unintended consequences (See my post of May 31, 2006: all management decisions express values; Dec. 12, 2006: instrumental variables and causality; and Jan. 25, 2008: causality with 10 references.). As for unintended consequences (See my post of Aug. 28, 2005: trade offs when actions are taken; Aug. 1, 2006: second-order consequences; Dec. 17, 2006: all practices have pros and cons; and July 10, 2007: well-intentioned actions boomerang.).
My final two candidates for pipe-smoking and pondering rest on mathematics: Bayesian statistics and power laws (See my post of Jan. 20, 2006: Bayesian analysis and law departments; June 16, 2007: deeper look at Bayesian analysis; Dec. 26, 2005: one form of statistics; Sept. 9, 2008 #1: standard deviation and Bayesian statistics; and April 5, 2009: Bayesian belief networks; and Jan. 25, 2009: attributized Bayesian analysis.). As to power-law distributions (See my post of Feb. 24, 2009: power laws and their appearance in law departments; Feb. 24, 2009: primacy of intangibles; Nov. 13, 2005: fractals, bell curves and power laws; July 25, 2005: bell curves compared to power laws; and May 27, 2007: Zipf’s law.).
