During the past one-thousand posts, litigation that involves patents accounts for several of my posts (See my post of Dec. 17, 2010 #3: patent trolls and lawsuits; Jan. 14, 2011: patent litigation costs; Jan. 22, 2011: low percentage of chip patents in litigation; June 19, 2011 #4: LITAlert database of patent litigation; July 19, 2011: patent litigation metrics in France; Aug. 23, 2011: patent awards to trolls compared to operating companies; and Sept. 13, 2011: $7 billion cost of NPE litigation.).
From the same set of posts, workload for patent lawyers shows up in several (See my post of Jan. 10, 2011: competitive monitoring; Jan. 10, 2011: R&D staff numbers compared to patent lawyers; Jan. 28, 2011: reporting lines in French law departments; Jan. 28, 2011: EADS encourages patentable research; June 8, 2011: executives value IP increasingly so more work incurred; June 19, 2011: consequences if a company’s patents are deemed industry standards; April 14, 2011 #5: American Express’ redesigned patent program; Aug. 10, 2011: ratio of patents applied for to granted regarding cell phones; and Oct. 16, 2011: defensive publication.).
Given my fondness for metrics, a number of posts refer to benchmarks and calculations regarding patents (See my post of Jan. 3, 2011: swarms of patents from China; Jan. 11, 2011: synthetic indices; and June 13, 2011: two common KPIs in patent management.).
Costs, always costs, show up in several posts (See my post of March 27, 2011: European patent costs may drop; April 27, 2011: Lecorpio patent software; July 30, 2011: no patent, no payment of fees; Aug. 18, 2011: high cost to small companies of obtaining patents; Oct. 14, 2011: software to oversee a patent portfolio; Oct. 24, 2011: varied treatment in budgets of patent costs; and Sept. 16, 2011: patent aggregators AST and RPX who help reduce costs.).
Good advice, in my view, about use of e-mail comes from the NY Times, Dec. 25, 2011 at BU 8. In a column that interviews CEOs, the most recent one explained a rule about disagreements by e-mail. Basically, after the second e-mail of disagreement (I write: “The moon is solid.” You write, “It’s made of green cheese.” After I write, “No, solid swiss.”) that’s the end of writing online to each other. The cultural rule in that company says you pick up the phone, or Skype for a video discussion, and hammer out your views. I strongly support that rule: if you want to understand someone and figure out a solution, talk to them.
The CEO added: “It takes 90 percent less time to resolve conflicts when we talk, compared with when we write.” Of course, the CEO has done no study of the time it takes to resolve conflicting by discussion compared to by e-mail but the faux metric has rhetorical punch.
A rare example of quantitative research that bears on management issues of legal departments appears in the Acad. Mgt. J., Oct. 2011 at 981. The authors analyzed all two-party disputes involving vertical relationships handled by one law firm in Western Europe between 1991 and 2005. Those 102 disagreements involved 178 different companies and amassed over 150,000 pages of documents. The researchers classified the contracts at issue as distribution (35.3%), production supply (29.4%), information technology (26.5%) and consulting and other services (8.8%). Perhaps that is a reasonable classification scheme and distribution in general for vertical (purchaser-supplier) procurements. They also classified the key provisions in terms of whether they emphasized control or coordination.
The researchers drew on earlier work that developed “an unweighted index of contractual complexity, which tabulates the presence of up to eight key contractual clause categories.” At least two other studies had used that index (See my post of June 25, 2007: contract complexity; Jan. 24, 2010: group contracts by complexity; Feb. 15, 2010: software to gauge complexity of contracts; Oct. 31, 2010: Halstead metrics of software complexity translated to law department contracts; and Nov. 10, 2010: response to comment on contract complexity; and Jan. 24, 2011: a method to group contracts by complexity.). Law department managers might find useful insights in the academic literature on contractual sophistication and how to assess it.
Collective actions by several general counsel is what this post has in mind. They agree to do something jointly and the resulting consortium can out-achieve what any individual department could. Previously, I have assembled 30 posts on this blog that refer to aspects of collective (or potential collective) action by multiple law departments. Having since then accumulated six more, here is the entire set organized by topics.
Technology (See my post of March 27, 2005: AI software; May 20, 2005: joint technology development; Sept. 21, 2005: Cisco and shared development costs for software; Oct. 19, 2005 #3: technology development; Feb. 1, 2011: law departments might combine to develop apps; and Nov. 22, 2011: teaming to develop augmented cognition software.).
Cost control (See my post of July 21, 2005: HR systems; May 13, 2007: League of Minnesota Cities and legal insurance; Feb. 25, 2010: pooling of purchases by smaller legal departments; Oct. 4, 2010: gathering of law departments and law firms to think through reserve setting; and Feb. 21, 2011: possible posting of a cash prize for innovative management ideas.).
Shared interests (See my post of May 24, 2006: patents pooled in a defense alliance; Dec. 28, 2006: patent applications collectively reviewed; Feb. 14, 2007: Corporate E-Discovery Forum; Feb. 26, 2009: conflicts rules among financial companies March 1, 2009: GC groups with 12 references; Aug. 20, 2009: statements signed by groups of general counsel; and Nov. 3, 2010: multi-department amicus briefs in support of cert petitions.). Benchmarking – usually through intermediaries -- so that everyone gains comparative insights, is the most common form of collective activity involving law departments
Outside counsel (See my post of June 19, 2006: British local authorities hire external counsel; April 22, 2007: update UTBMS codes; April 15, 2007: Lloyds and legal fees; July 4, 2009: database compiled jointly of diversity firms; Dec. 7, 2009: shared diversity questionnaire for law firms; Nov. 5, 2009: collective assessments by law departments of their firms with 10 references; and Jan. 11, 2010: shared evaluations of law firms.).
Talent (See my post of Nov. 25, 2006: mentoring shared among several law departments; Nov. 18, 2007 #2: minority job fairs; Sept. 21, 2008: diversity teamwork among three law departments; and Aug. 21, 2009: Pro Bono Institute.).
Knowledge management (See my post of Oct. 22, 2005: to check whether client is correct regarding “industry standards” of behavior; March 6, 2007: collective effort by law departments to develop CLE material; May 24, 2007: Allstate shares its CLE programs; March 26, 2009: data pooled offshore for decision analysis; June 21, 2010: reward system for knowledge base contributors; and July 11, 2011: PSL's as an opportunity for law department collectives.).
Adrian Furnham, 50 psychology ideas your really need to know (Quercus 2008 at 118, discusses brainstorming and concludes that “people working alone on a creative project produce better and more answers than a brainstorming group.” Any group, in fact, could suffer from these debilitations. He offers three explanations, and I quote his terms.
(1) Because of “evaluation bias,” people become self-conscious in groups and clam up even if they have good ideas. (2) “Social loafing” allows some people in a group to ride along on the coat-tails of the more energetic members of the group. (3) “Production blocking’ allows people to say that they cannot think clearly with all the hubbub, or perhaps it is true.
Furnham also cites research that shows “group polarization.” We may believe that group decisions lead to moderate positions and less extreme decisions, but he explains two forces that militate against such outcomes. Group members compare themselves to others in the group and harden in their attitudes. Secondly, a very persuasive or confident member can sway the others toward a more extreme position.
Self-help best-sellers (“You can be anything you want to be if you [do this magical thing]!!”) leave me more than a bit cynical so it was with considerable interest that I read in the NY Times, Nov. 27, 2011 at SR8, about willpower. It’s hard for in-house counsel to slog through the final pages of a turgid contract, or to review the bill that runs into hundreds of thousands of dollars, to push for the conversion of data by the end of the month – to demonstrate resolute willpower.
The research described in the article disputes the notion that willpower has a set biological limit due to either the hypothalamus or your glucose level and that you can’t increase it. The authors found that those who believe that their willpower doesn’t face natural limits are much more able to push on and exercise more self-control. If you change your mind-set from willpower constrained to willpower unleashed, you will benefit.
Sylvia Nasar describes a remarkable theory and empirical finding by the Nobel Laureate economist, Robert Solow: “Nine-tenths of the doubling in output per worker in the United States between 1909 and 1949 was due neither to the accumulation of physical plant nor to improvements in the health or education of the labor force, but rather to technological progress.” The quote from her book Grand Pursuit: the story of economic genius (Simon & Schuster 2011) at 443 set me on two paths of thought.
One path suggests that productivity increases in law departments have little to do with anything physical (other than computers) or any amount of CLE or professional development, including productivity enhancements such as teamwork. Productivity gains follow from software used better.
The other path my thoughts took were to the definition of technology. We immediately think of computers and software, but Solow’s term might also embrace systems and processes. “Technological progress” could be a broader set of improvements than simply those that depend on silicon chips and software code.
An article in the Acad. Mgt. J., Vol. 53 (2010) at 701-722, analyzes why corporate prominence may lead to a higher incidence of corporate illegality. The authors studied 194 S&P 500 manufacturing firms between 1990 and 1999. They searched databases for references to what they defined as corporate illegality and reviewed the Corporate Crime Reporter for the period. Of the 469 incidents they located for the group – an average of about 47 per year, therefore approximately one out of four companies per year had an incident – they consisted of 162 environmental violations, 96 fraud-related, 124 false claims, and 87 anti-competitive. The article only studied those four kinds of violations.
Perhaps that pace of corporate wrongdoing by manufacturing companies applies more broadly than just to members of the S&P 500. Those categories of criminal activity, maybe with less emphasis on environmental transgressions, could be extended to other industries. In short, this research suggests a data point and even a way to quantify some portion of legal department work – alleged criminal violations and the associated governmental investigations.
It turns out that it may not be at all clear that prospects of change in regulations deter companies from proceeding with their initiatives. Here is how the Economist, Oct. 29, 2011 at 88, summarizes a recent article by a senior Treasury official: “She found no evidence that regulatory uncertainty is holding businesses back from hiring or investment.”
If the unsettled regulatory environment makes no difference to companies, it becomes harder to claim, without empirical support, that the same environment burdens law departments with significant and complex workloads. In the financial industry, everyone assumes, regulatory demands have soared, and perhaps in healthcare. But for large portions of U.S. industry, perhaps the desk-crushing load from governmental rule-making is less than touted (See my post of Aug. 3, 2010: Sox with 19 references and March 28, 2011: costs of regulation and value of law department with 7 references.).
Richard Swenson, a medical doctor, popularized the concept of time margins in the mid-1990s. As described in Benny Tabalujan, ed. Leadership and Management Challenges of In-House Legal Counsel (LexisNexis Australia 2008) at 43, in-house lawyers would moderate some of the pressure on themselves, and be able to get some work done more effectively, if they purposefully created blocks of empty time in their calendars. Buffers of hours let you fit in unexpected calls, think through knotty problems, or simply change gears and recover a bit.
Deliberately unscheduled time, be it 30 minutes a day or a two-hour segment once a week, has benefits something like scheduling meetings for 50 minutes (See my post of Dec. 10, 2009: give yourself time between meetings.).
