Articles Posted in Thinking

“Memory augmentation software” – that caught my eye! A piece in Fortune, Oct. 17, 2011 at 70, describes Evernote, free software that lets a lawyer type notes, add scanned items, save web items, and record voice memos all in an easy-to-use application that helps sort and retrieve. I looked at the website for the company and felt that many lawyers would be grateful for a way to collect stuff about matters they work on all in one place.

Software such as Evernote, which claims 15 million users, can help people keep track of their fragmented work lives. Another offering in the same genre is LiveNote.

An item in Bloomberg Bus. Week, Sept. 26, 2011 at 81, points out that there are two aspects of concentrating. “One is to get rid of extraneous thoughts, the other is to focus on the task at hand.” Fine, but how do you clear your mind of distractions? Recent research suggests two ways: dwell on the undesired thoughts for a short, fixed time and then buckle down or postpone the unwanted thoughts until a specific time. Both seem to mollify the tug for some people. For me, quiet is the key as well as sitting in a familiar spot for thinking – my desk.

You can improve your focus by keeping glucose levels normal and not making decision after decision (which depletes mental energy). Adequate sleep, health and food create the best conditions for concentration. Also, you can practice keeping your mind on a topic such as by mental exercises. My trick when writing and trying to think of one more argument or point is to stop, then say to myself: “Rees, think of one more thing.” It works (usually).

The Harvard Bus. Rev., Sept. 2011 at 75, discusses a way to deal with complexity through what the authors call triangulation – “using different methodologies, making different assumptions, collecting different data, or looking at the same data different ways.” To understand a complex situation it helps to triangulate from multiple angles and sources.

The corresponding term for social scientists is cross-sectional analysis, which means that if a researcher were to investigate outside counsel expenses, a wide variety of cross sections (triangulations from different perspectives) could inform that study. Which firms are or have been used, interviews with law firms, analyses of matter management data, maps of the invoice process, RFPs, fired firms, fee arrangements, scores from evaluations, historical documents like old guidelines– the list of vantage points and sources extends a long way.

In short, anything about management oozes complexity and allows a multitude of views – perhaps an infinite number of them.

Improvisation techniques applied to members of a brainstorming group have much value, judging from a sidebar in Rotman Mag., Fall 2011 at 18. For example, (1) identify a leader, someone who is empowered to keep an eye on the group and its dynamics. (2) Use “build on the ideas of the previous person”: when someone offers an idea, the next several people must say, “Yes, a good idea and let’s ….” and push further on it. (3) Free-wheeling: pick an idea and “pass it around” so that everyone tries to embellish it, alter it, push it further.

Lawyers find it difficult, I suspect it is fair to say, to unbutton, improvise and float in creativity. These acting prods may help them reach their inner, creative selves through brainstorming. Since my last metapost on brainstorming I have written six more flashes (See my post of Jan. 4, 2009: electronic brainstorming with decision-support software; April 6, 2009: brainwriting as an alternative; April 27, 2009: 11 suggestions for a brainstorming session; June 1, 2009: reverse brainstorming; Jan. 28, 2011: brainstorming replaced by techniques based on neuroscience; and June 9, 2011: a tool for Six Sigma.).

For many managers, if a way of working gets the job done, who cares why? It makes no difference to them what the cause is, underlying explanations for the reliable outcome, the reasons behind decisions, tools, and management that brings the outcome about. This view is known as instrumentalism, and David Deutsch, in The Beginning of Infinity: Explanations that Transform the World (Viking 2011) at 15, defines it as a denial that explanations – conjectures that are tested and successively improved on – are necessary, valuable, or can exist at all (See my post of Aug. 29, 2008: ideas become means to a solution rather than values in their own rights.).

Pragmatism overlaps with instrumentalism (See my post of May 10, 2010: value can only be a pragmatic determination afterwards; and July 8, 2010: thoughts on positivism and postmodern notions.).

One form of instrumentalism is a rule of thumb, which doesn’t try to explain why it works. A manager comes to realize 30 cases per litigator seems about right; one week for a normal patent application fits most of the time; disbursements run about 10 percent of fees – for these folk wisdom will do, no need to think deeper. I suspect in the sphere of general counsel that delegation is also a rule of thumb. Rules of thumb rely on knowledge that is both familiar and uncontroversial, so-called background knowledge (See my post of June 19, 2011: rule of thumb, with 18 references.).

How easily people process what they perceive has a term in human factors research: load. There is “cognitive load,” meaning that when a dashboard, for example, takes a lot of thinking or remembering to make sense, it has high load. “Visual load” refers to what Prof. Edward Tufte would call chart junk or what we wade through when a page is cluttered, splashed with colors, animation, and multiple parts. “Motor load” applies less to practicing lawyers, but it is a third type.

These three loads come from Rotman Mag., Fall 2011 at 104. That magazine emphasizes integrative design thinking. This contribution gives a terminology and a framework for thinking about complexity (See my post of Sept. 14, 2011: three dimensions of complexity.).

From an article in the Harvard Bus. Rev., Sept. 2011 at 70, comes a three-part definition of complexity. “The first, multiplicity, refers to the number of potentially interacting elements. The second, interdependence, relates to how connected those elements are. The third, diversity, has to do with the degree of their heterogeneity. The greater the multiplicity, interdependence, and diversity, the greater the complexity.”

To what degree a legal problem could be described as complex, by this definition, depends on the number of legal issues present that have some bearing on each other, their degree of interplay with each other, and how far apart they are in terms of being substantive legal areas that aren’t usually connected to each other. A major acquisition reeks of complexity; a small sub-lease renewal barely registers. A ten-year offshore agreement raises issues galore, solutions to those issues bump into consequences for other legal challenges, and a dozen hornbooks couldn’t cover the wide spread of problems that face the legal team.

“Scientific explanations are theories, assertions about what is out there and how it behaves.” Thus does David Deutsch, in The Beginning of Infinity: Explanations that Transform the World (Viking 2011) at 3, introduce the key concept of his magisterial book. Explanations come about because people conjecture them regarding objective reality. “Discovering a new explanation is inherently an act of creativity” (at 7). Then, they and others criticize and test the creative conjecture. All valid knowledge begins, expands, and improves by those steps.

Knowledge acquisition done properly Deutsch terms fallibilism, which recognizes “no authoritative sources of knowledge, nor any reliable means of justifying ideas as being true or probable”. Fallibilists believe all knowledge might be shown to be wrong, fallacious. Progress in thinking exposes misconceptions and improves them, in turn to have those sounder explanations challenged and improved on. For example, best practices for law departments ought to be viewed as the best current thinking, but not to be taken on faith or forever or because of the endorsement of a guru general counsel.

Everything we observe about a law department rests on an implicit or explicit set of beliefs about what matters – theories (See my post of Feb. 21, 2007: the theory-ladeness of all observations.). Illustratively, to pay attention to the law school where a potential hire graduated rests on a set of theories. The categories for posts on this blog evidence theories of what counts in law department operations.

In response to my post last week about Kenneth Arrow’s impossibility theorem (See my post of Sept. 5, 2011: no fair way to decide by voting.), my friend Michael Mills, head of the legal software firm Neota Logic, offered some additional comments.

“True, there is no approach to decision-making that assures fairness. But the analytic hierarchy process (AHP) is a much-tested and analyzed process for making better (though not necessarily best) decisions. Wikipedia has a quite good article. And these companies have built AHP into easy-to-use software.” Thank you, Mike.

A branch of game theory known as social-choice theory studies institutions and methods of collective decision-making. Voting in elections, for example. Social-choice theory deepened enormously from the 1950’s on after Kenneth Arrow laid down five elementary axioms that any rule defining the preferences of a group should satisfy. To widespread dismay, Arrow proved that those axioms are logically inconsistent with each other. There is no rational way to assure fairness when members seek to determine a group’s collective preference (See my post of Aug. 13, 2009: the impossibility theorem of Kenneth Arrow.).

This dispiriting truth David Deutsch explains in The Beginning of Infinity: Explanations that Transform the World (Viking 2011), Chapter 13. Deutsch, however, proposes that this no-go theorem has an out: people can create new choices. To flesh out his point would go beyond the scope of this post. Meanwhile, managers of law departments should not give up on decision-making by votes, but they should recognize that the best plans and techniques do not promise fairness.