The data reported in Exari’s white paper, Corporate Counsel Contracts Survey Report, Dec. 2011 at 8, appears impressive but upon reflection offers little insight. The company's recent survey of approximately 100 legal departments asked them to estimate the average time they spent reviewing each contract. A chart shows four choices and what percentage of the respondents selected each choice. Roughly speaking one quarter chose each of about one hour, four hours, eight hours, and more than eight hours.

The distribution of those responses is so wide, a range of more than 8-to-1, that the results tell us little. Perhaps the question should have posited a representative contract and asked about that because the data as given leaves you scratching your head. It just cannot be that some legal departments average an hour per contract they review while others require more than a day. Something else is going on that distorts these response.

Quite possible the kinds of contracts being thought of are not the same. For example it may be the review of a routine sublease takes hardly any time at all by an experienced lawyer and some law departments mostly have similar commodity contracts. On the other hand the review of an agreement to construct a nuclear power plant justifiably deserves days and days of careful thought.

Exari’s white paper, Corporate Counsel Contracts Survey Report, Dec. 2011 at 7, draws on responses from approximately 100 companies. They report that "an average of 67% of their contracts is created on their own paper and 35% of those agreements are renewals. Roughly 72% of contracts created by the respondents are reviewed by legal."

It would make sense that the larger the company the higher the percentage of contracts, at least on the sell side, would be on their own paper. They have the clout to prevail, which is yet another advantage of scale. Second, renewals are undoubtedly much easier to complete – at least in terms of legal approval – than the initial contract. Finally, although contract review occupies a significant chunk of many in-house lawyers’ time, from this data something like a quarter of all contracts created within a company is handled solely by the business units. That speaks to the plentiful supply of form contracts and fall-back provisions that clients can draw on by themselves. On the other hand, law departments review a much higher percentage of contracts that come on the other side’s paper.

For all that inside counsel groan about the increasing pace of their work, a pace accelerated frequently by technology, the self-same tools enable them to keep up. It's true that e-mail bombards, instant messages ping, cell phones ring, and PDFs darken the skies. A lawyer’s office hours wallow in technological impositions. They increase the urgency and amount of work required.

Counterpoised to those burdens, technology and the Internet put power in the hands of in-house counsel that they could not have imagined a mere decade ago. Videoconferencing allows many meetings and discussions to take place without travel. Cell phones, the bane of some, still provide wonderfully flexible access. Ever more powerful computers, devices, and software let us find tools to suit our style and plow through the work. The weight of technology, paradoxically, is lifted by its capabilities.

The more ideas and possible mixes and matches a manager has available to choose from, the more permutations there are. Obvious, yes, but do you know the mathematics of that increasing complexity?

Think about a process that has 10 tasks that could be done in any order. The number of different ways to arrange those tasks can be computed easily: 10 times 9 times 8 times … The result is 3,628,800 different arrangements.

Or, as another example, assume that a general counsel can choose among six basic structural options for the department. If each choice could be implemented independently of the others, that creates 6 times 5 times 4 times 3 times 2 configurations. This is called 6 factorial and mathematicians write it as 6!: 720 Some people refer to it is permutations – all the ways a set of independent things can be rearranged.

One more illustration. If you have a dozen law firms on your panel of preferred firms, and all of them could work as a massive virtual firm on some huge case or matter, what are the possible arrangements of them for tasks? The answer is 12 factorial (12!) and Excel tells you instantly, with the function “=fact(12)” that the possibilities are ample: 479,001,600. Combinatorial functions actually grow faster than exponential functions above some relatively modest number.

Paul Lippe, in his email to Legal OnRamp members of Jan. 17, 2012, offers “five phenotypes of change reactors.” They characterize general counsel (and all people) on a spectrum of willingness to try something new.

• Innovators, who do new things because they like doing new things.

• Early adopters, who want competitive advantage over others.

• Pragmatists, who want to stick with the herd.

• Conservatives, who want to hold on.

• Laggards, who simply say "no way."

Lippe then fleshed out those five ideologies, which my brackets take the liberty of transposing slightly to general counsel.

Laggards: “don’t throw the baby out with the bathwater” (laggards love strawmen) and “why should I bother? I have [job security].”

Conservatives: “I’ve heard all this before. Nothing will change.” [“The way it was worked better.”]

Pragmatists: “I get it, tell me what to do, what is [my big competitor’s law department] doing?”

Early adopters: “Here are the four initiatives we’ve launched. What do you see that’s working?”

Innovators: “No one is doing enough. My idea is the best one, everyone should adopt it.” [“I’ll speak on panels, write articles, and be interviewed about my favorite topic.”]

From my consulting experience, most general counsel vary in how much they will accept change according to (a) the amount of pressure put on them, (b) the particular domain, such as technology leaps are easier to accept than culture leaps, and (c) their awareness of trends that have reached the status of being commonly discussed.

For years there has been a plain English movement that has sought to simplify and clarify government documents and commercial agreements. A further development may be Transparency Labs. Its goal is to help consumers understand so-called “fine print” in contracts.

“Our team of experts starts by spending hundreds of hours analyzing individual fine print documents and labeling their constituent contract terms. These are the “genes” that make up the fine print. We map these genes along vectors, which enable us to compare one fine print agreement to another. Using this data, we can also create benchmarks to measure relative concepts like language complexity and consumer friendliness.”

That paragraph, dense with provocative concepts like genes, vectors and benchmarks, suggests all manner of analysis that could be possible for contracts worked on by legal departments. Further, Transparency Labs applies ideas from information architecture and visualization to make contracts clearer. Wouldn’t it be exciting to see a patent licensing agreement analyzed with these tools against counterpart agreements and then its key provisions displayed graphically?

If a general counsel or other manager in a law department sets out to accomplish a specific goal in a set period of time, that is an initiative, also referred to as a project (See my post of Jan. 7, 2010: examples include to license a new software system, change the mentoring program, set up a pro bono program.). It is a formal, recognized and perhaps even named management effort with boundaries of resources and objectives.

A process, by contrast, is a set of activities that goes on, often unannounced, unnoted and unnamed, like tracking time or distributing board books. People do it over and over and often don’t consciously think about the steps, let alone how to improve them. There is a process to make reservations in the conference room and a process to call the help desk when your monitor goes blank. Processes in law departments are everywhere, perhaps hundreds of them. Processes have component steps and they do have some variability, but unlike projects, mostly ad hoc and novel with a team designated for each, a process is to varying degrees standardized and familiar and no one may be really in charge or accountable.

Just as processes have associated tools, a body of knowledge, such as process maps and guidelins, so too do management projects. Books are written about project management, classes and consultants stand at ready, and there are tools galore, such as GANTT charts.

How you manage your only absolutely finite resource – your fixed allotment of time – determines your effectiveness. That much may be accepted intellectually, but under the onslaught of pressure, emotions, and foibles, our best laid plans aft gae awry. We don’t schedule ourselves very effectively and, worse, for many in-house lawyers, someone else sets the pace.

Despite its paramount importance, how in-house attorneys dole out their minutes and hours has gotten relatively little explicit attention on this blog (See my post of Sept. 3, 2008: general counsel are in control, except their own calendar; Oct. 4, 2009: give direct reports a time budget; Nov. 13, 2009: much of GC’s time is fixed by others’ schedules; Dec. 10, 2009: give yourself time between meetings; Sept. 16, 2011: limit meetings with clients to 30 minutes; and Oct. 31, 2011: build in time margins.).

My only suggestion is a common-sense one: take a few minutes to review and think about your own calendar and patterns and whether you could dole out your finite minutes more effectively.

“Regulatory proceedings” and “regulatory investigations” are terms used in the most recent Annual Litigation Trends Survey Report of Fulbright & Jaworski. No distinction is made between them, but one feels adversarial (investigations) whereas the other could be an administrative hearing like a rate increase proceeding.

Sixty percent of their 405 respondents (U.S. and UK) did not have a single regulatory proceeding commenced against them during 2010. That means forty percent did. The next page of the report (pg. 27) states that 55 percent of the U.S. respondents had retained outside counsel during 2010 for assistance in any governmental or regulatory investigation. The two figures mesh reasonably well.

The Eighth Annual Litigation Trends Survey Report of Fulbright & Jaworski found (at 13) that 18 percent of its 405 responding companies faced at least one lawsuit with more than $20 million at issue (5% of the respondents faced 6 or more). There is no breakdown given for U.S. and UK participants. A page later, the Report says that four percent of the U.S. respondents were involved in at least one arbitration of that size (12% among the UK participants).

If all we knew were those figures, is it plausible to bump up the percentage for the U.S. group, a country presumably more litigious and profligate than the UK, so that major lawsuits involve 20 percent of them? That would leave something like a ratio of one out of five with a $20 million+ lawsuit for each one out of 25 with one or more such major arbitrations. Hence, I put forward the 5-to-1 ratio of major lawsuits to major arbitrations.

A bit of corroboration appears later in the Report. The ratio of companies initiating at least one lawsuit during 2010 to those initiating at least one arbitration was 52 to 19, or about three lawsuits for each arbitration initiated.

I don’t recall seeing metrics on the distribution between lawsuits and arbitrations, and welcome comments.