An article in the Admin. Sci. Quarterly, March 2000, at 81, explores age of companies and their pace of innovation. Its discussion bears on law departments, I believe. Apparently there are two schools of management thought. Organizational ecologists find the liability of newness, others find the liability of senescence.

What that dense sentence means in our context is that new law departments struggle just to survive so their tolerance for creative management steps is low on the dial. Or, unfettered by tradition and “this is how it’s always been done,” fresh departments (say, less than five years old) can take the path less travelled and that will make all the creative difference.

Established, older departments have the basics down pat, have some time and slack resources to breath, so to speak, and therefore can innovate. That is the argument that links maturity and innovation. Or, as some people believe, they become atrophied, rigid and conservative.

Unfortunately, we can talk all we want about this not-quite raging debate, but we have no empirical evidence either way, yet. My sense, for what it is worth, is that established departments test new ideas more than do fledgling departments because they have become competent in basic managerial steps and want to move on.

Every law department has proximal goals and distal goals. Proximal goals are to reduce legal risks of the organization, to deliver legal advice to it, to resolve legal disputes involving it, and to handle legal documents on its behalf. Those goals that are distal, secondary goals necessary to achieve the primary goals, include to maintain sufficient numbers of skilled staff, to retain outside counsel as needed, to implement technology and systems, and to accumulate know-how. The latter set of goals is secondary because the purpose of a law department is not to spend time and resources on them except as a means to the primary ends.

To achieve its goals, of both the ultimate and supportive kind, a law department implements and hones numerous processes. A process is a series of understood and related steps done repeatedly with a definable purpose to accomplish a foreseeable outcome. For example, one process done at least yearly decides raises for lawyers. Another process maintains the corporate books and records of the company.

Each process in a law department can be accomplished in various ways by the selection of methods. If the process is to select outside counsel, to pick one, a law department can (a) use an RFP, (b) select a panel and assign work according to that decision, (c) send the matter to a firm that handles all those kinds of matters for the company, (d) let the responsible lawyer choose the firm, (e) require approval of the general counsel, or (f) mix and match an infinite variety of methods.

Finally, as it pursues its ultimate goals through processes customized by its methods, a law department can select from a wide variety of tools. The term “tools” encompass accountings, communications, databases, decision aids, guidelines, meetings, reports, spreadsheets, statistics, surveys, and many more. Every tool can contribute to every method.

In this framework, one more piece of the taxonomy belongs to broad concept groups that embrace families of methods and tools. Instances of management concepts include change management, convergence, partnering, project management, quality control, Six Sigma, and TQM.

An interview of the eminent historian John Lukacs by Historically Speaking, Vol. 10, Sept. 2009 at 14, makes two observations about historical knowledge that apply to legal department knowledge about management practices.

Lukacs points out that “we think in words, which have their own histories. Words are not finite categories but meanings – what they mean for us, to us.” The words someone uses to describe a management practice in a law department are not clinically precise, clearly communicatable. Rather, words are to varying degrees subjective, amorphous, fluidly changeable, and laden with connotations. They are unreliable in many ways when we try to describe a practice.

Lukacs then makes a second point: “Our historical knowledge is inevitably participant. There cannot be any antiseptic separation of the knower from the known.” Given the distortions that inevitably accompany any memory or description by someone who was involved, “We cannot nail down a so-called historical ‘fact’ for good.” Nor can we ever fully understand what a law department did to create or improve a process because those who can best describe what happened were part of it and therefore cannot be objective.

Journalists covering the legal industry love to write about innovative practices. A scoop is a piece on the next big flavor. Some general counsel, too, would like to come up with the latest and greatest management technique.

But a solid body of research into business success points out that businesses which adopt a pioneer’s initiative may not trail in the dust but in fact race ahead – the second-mover advantage. Pioneers take a lot of arrows; settlers live longer. Law departments can innovate or they can imitate but they will probably fare better if they selectively choose from somewhat tested ideas.

To implement a new idea is the essence of innovation (See my post of Oct. 4, 2009: innovation defined.). That post and this one survey what I have written generally about innovation in law departments since my first metapost on innovation in late 2005. It does not collect specific instances of activities described as innovative nor reprise new ideas from law firms. Neither does it continue the attack on the promiscuous use of the term (See my post of June 11, 2008: over-use of the term innovative; and Dec. 17, 2007: dilution of the term.).

Constraints on innovation exist, and not simply tight budgets. One is a psychological predisposition of lawyers to avoid risks (See my post of Aug. 24, 2008: lawyers and risk averse behavior with 11 references.). Some feel that another constraint is, oddly enough, disciplined process methodologies (See my post of Jan. 20, 2007: Six Sigma throttles new ideas.). A third constraint is the pace of change a legal department can absorb (See my post of Dec. 17, 2007: outstanding article on innovation; and Feb. 6, 2007: an innovation pyramid.). Another constraint results from ineptitude in change management. To alter how things are done, to move from creation to innovation, often calls upon the collection of precepts referred to as “change management” (See my post of Dec. 21, 2008: change management with 16 references cited.).

How innovation spreads from law department to law department fascinates me, although nowhere have I found a study of it. In addition to general counsel reading about new methods and talking to people in their network, many other seeds of ideas exist (See my post of June 25, 2007: how innovation happens in law departments; June 25, 2007: ways ideas spread; Dec. 3, 2007: not all general counsel regard their cherished ideas as open source; Oct. 22, 2006: patents on innovations of legal departments; and June 15, 2006: larger law departments are more managerially innovative.).

Techniques to tease out new, practical ideas abound (See my post of Feb. 5, 2009: ergonomics of innovation; Dec. 31, 2008: systematic inventive thinking; Feb. 24, 2009: three methods to collect good new ideas; Feb. 14, 2009: combine familiar ideas into new approaches; July 17, 2009: host innovation tournaments; April 2, 2009: psychometric test of innovativeness; Jan. 21, 2008: fund internal idea initiatives; and May 1, 2006: internal think tank.). Note that innovation also includes abandonment of practices (See my post of April 30, 2006: fresh thinkers drop some activities.). One set of methods to accelerate the creative side of innovation is brainstorming (See my post of Dec. 31, 2008: brainstorming with 5 references.). Benchmarking can also spur innovation.

I urge general counsel to do basics well, and keep improving them, rather than grab at the next shiny idea (See my post of Feb. 15, 2009: improve basics before leaping to novelty; Nov. 6, 2007: focus on execution more than innovation; July 16, 2009: misguided emphasis on creative over effective ideas; and Jan. 3, 2008: productivity is more important than novelty.).

An innovation is any practice perceived to be new by a general counsel or other member of a legal department. That definition covers change of every kind and emphasizes internal perception: the innovation could be common elsewhere but if it is perceived by the adopting law department to be fresh and different, it is an innovation (See my post of Dec. 16, 2005: innovation with 7 references.). What constitutes innovation is subjective (See my post of Dec. 6, 2007: innovative ideas in law department management.).

A new idea is not enough. Someone in a legal department can be creative – come up with a new idea – but innovative it is not until the idea translates into practice (See my post of Aug. 17, 2009: low odds on new ideas; and Sept. 26, 2009: creativity with 13 references and 2 metaposts.). The new practice does not have to be beneficial to be classed as an innovation.

Hence, for a general counsel, a change is innovative if it is novel for that department and becomes an accustomed practice.

Those who speak and write about innovation in legal departments often cite technology (See my post of Oct. 26, 2007: “technology” innovates, “automation” merely speeds up.). It is easy to see that software is new and that it works. Whereas the presence or absence of technological innovations is relatively unambiguous – you even know the date when you installed e-billing – the definition and starting point of administrative innovations is often murky – you gradually evolved your law-firm evaluation system and no clear date marked the start of the practice. Operational practices are often emergent innovation.

Another thought or three on why I mistrust palaver about “best practices” (See my post of March 20, 2009: seven objections.).

Best practices give short shrift to context of the legal department that is held out as fostering a best practice, alterable circumstances such as perseverance and the individual champions. More subtly, a law department that adopts a practice brushes away not only malleable context but also given conditions. Size of a company, its corporate history, business conditions, pressures of other executives, talent of individuals are presumed to hold constant for the department that wants to adopt the best practice. Givens can enable or hobble best practices, but are typically ignored by the new adopter.

My second objection to “best practices” is that we define the boundaries of a practice arbitrarily. If you say that competitive bids are best practice, what about related actions just “outside” that boundary, such as preference for incumbents or evaluations of the firms once chosen? Or further “inside” the boundary there are bidders’ conferences and multiple-round bids? Where does a “practice” begin and end?

Third, to evaluate two practices requires a common measure, hence can be done only if the “ends” are intermediate, serving as means to, and deriving their value from, a more general end. That difficulty of evaluating practices renders very suspect statements that any one practice is optimal.

If you have an interest in outside counsel management, making the most from the talent in your department, or your legal department’s structure, email me and I will be happy to send you any one of my blook’s table of contents and first chapter (tell me which one you want). You can get a sense of the style of the blook and whether you would like to purchase it from my website.

Mark Prebble, Managing In-House Legal Services: Providing High Value Support for Your Organisation (Thorogood 2009) at 49, discusses support staff and both gives and takes advice: “Without getting bureaucratic it is worth developing an operating guide for support staff, which sets out respective expectations and acts something as an induction briefing for a new recruit.”

He gives good advice, if your department has the heft to benefit from a handbook for non-lawyer roles. The guide can lay out what is expected and what aids can help the staff achieve those expectations. The further advice not to over-administer work is also sound. Don’t clog the arteries with rules and restrictions.

Project management skills come into play with project teams (See my post of Feb. 1, 2009: project teams of law departments with 39 references and 4 metaposts.).

I have written about project management generally in legal departments (See my post of April 18, 2005: project managers; Feb. 1, 2006: project managers; Aug. 22, 2006: requiring project managers for large cases; Dec. 22, 2006: Eversheds; April 28, 2009: a law department applies project management; Aug. 15, 2008: perceptions of usefulness of project management software; Oct. 2, 2008: can project managers co-exist with litigation managers; and Dec. 12, 2007: project management software and litigation; and June 4, 2009: four essential concerns of project managers.).

Other posts address other aspects of project management (See my post of May 10, 2006 on Canadian rankings of the skills needed for in-house lawyers; June 15, 2009: work breakdown structure; June 26, 2009: Six Sigma as a project management tool; and Sept. 17, 2009: different use of term for organizational software.).