Articles Posted in Tools

An advertising supplement in the ACC Docket, Vol. 27, Jan./Feb. 2009 after page 48, very clearly describes decision-tree analysis. Brian Daley BDaley@ogilvyrenault.com of Ogilvy Renault writes:

“At its most basic, a decision tree is a diagram that starts with two branches that represent a choice, for example to litigate or settle a lawsuit. Each branch expands into a series of sub-branches tht represent all of the possible occurrences associated with each choice. The sub-branches end when a final outcome is reached, for example, the defendant is found liable, the defendant is found not liable, etc.

By assigning probabilities to all of the possible occurrences and dollar values to all of the potential outcomes, you can determine and calculate the probabilistic value of each choice. Commercial software products automate this process and provide lots of bells and whistles.”

Linguistics philosopher Gilbert Ryle made a distinction between what he called task or action verbs and achievement or success verbs. In the context of legal departments, “write off” and “settle” are task verbs (they refer to doing something); “economize” and “resolve” are their achievement counterparts (they referred to goals, desirable outcomes).

Much that is written about law departments is clotted with achievement verbs — identify, develop, implement — that sound admirable but offer no clue as to how a general counsel can accomplish them in specific contexts. Consultants, for instance, help general counsel if they recommend with task verbs (“Stop using 15% of your law firms.”) rather than with “achievement verbs” – they always sound like platitudes (“Streamline your use of outside counsel.”). This distinction in verbs (and advice) comes from strategy + business, Issue 54, Spring 2009 at 115.

Best practices do not exist, despite what many general counsel would like to believe. A few years ago I collected a few posts on “best practices,” but since then there have been two dozen more (See my post of June 6, 2006: best practices with 4 references).

I have organized them into three categories: me railing against the concept, others advocating best practices in various areas, and general comments about optimal practices.

Rees Railing against Best Practices. Leave it to me to pound the notion of “best practices” (See my post of March 4, 2008: three thoughts against best practices; Nov. 27, 2007: best practices ride roughshod over context; Sept. 22, 2008: post-modernist critiques; Feb. 6, 2007: all processes have pros and cons, so no best practices; Aug. 22, 2006: Kaizen challenges; and Nov. 11, 2007: known unknowns and unknown unknowns.). My rejection of best practices encompasses other points (See my post of Jan. 14, 2007: casual benchmarking does not disclose practices; Jan. 13, 2008: benchmark “worst practices”; Jan. 2, 2009: the pathology of trends fabricates best practices; Nov. 26, 2006: memes represent practices; and Nov. 27, 2007: how-to’s obliquely recognize best practices.).

A splendid article in the McKinsey Quarterly, 2008, No. 4, at 131, by Stanford professors Hayagreeva Rao and Robert Sutton, makes the counter-intuitive point that efforts to innovate get a boost from constraints. Oddly, if you limit the number of choices people have to solve a problem, they may think more deeply and creatively about the smaller group (See my post of Nov. 13, 2006: decision makers paralyzed by too many options.).

Citing an example from the medical industry, the authors point out a corollary. In terms relevant to this blog, a law department that focuses on a handful of basic practices for, say, managing outside counsel, may well do better at developing and implementing ideas. Novelty alone is far from a guarantee of success; tested practices, the blocking and tackling of management, do better if people concentrate on doing them well and refining them. The authors pull together this idea succinctly: “Think constantly about how to develop the most successful blend of existing ideas rather than the newest and most radical ones” (See my post of Dec. 31, 2008: “systematic inventive thinking”; Jan. 2, 2009: management trends; and Jan. 2, 2009: grass roots knowledge management.).

When I am not blogging, I like to write articles. My oeuvre now covers quite a few topics. If you would like to download PDFs of any of my 38 articles, visit my website and enjoy!

I have added short summaries of the topics of each article. Nearly all of them are also commented on somewhere on this blog.

A survey jointly conducted by the Law Society, the U.K. equivalent of the ABA, and NewGalaxy Partners, a London-based legal outsourcing firm, collected responses from 52 British corporate counsel. Some of them completed an online survey and some gave telephone interviews, which is a methodological twist. That is not the point of this post, however.

Somewhat less than one in five of the 52 law departments (17%) reported that their companies send some legal work abroad and only a handful more expected their companies to be offshoring in the next two years.

Oddly, though, 31 percent of the respondents predicted that “most large corporations will offshore within five years, and 44 percent suggested that international law firms will also establish their own units abroad.”

In January 2008, CFO magazine surveyed 181 finance executives about their company’s offshoring practices. About one out of three said their company used “offshore outsourcing” and another ten percent planned to.

In CFO, Vol. 24, March 2008 at 76, a chart shows six job functions and what percentage of the respondents that were already outsourcing offshore or planned to had sent overseas. The highest percentage (57.1% of the companies) handled that way was “Information technology;” the lowest percentage (1.4%) was “Legal” – but at least it was mentioned.

If the respondent group was representative of US companies and if the passage of one year has increased the incidence of legal offshoring, is it plausible that two out of hundred law departments now send some work overseas to legal process outsourcers?

It is an honor for this blog to become one of the 15 blogs on the ACC website. Three others also comment on management issues that general counsel encounter (InHouseBlog of Geoff Gussis, Wired GC of John Wallbillich, and the legal thing of Mike Dillon). The remaining blogs are from publications (American Lawyer, Wall St. Journal and Legal Times) and some substantive law bloggers (See my post of Jan. 28, 2009: law department management blawgs with 11 references.).

Information about 23,000 US patent suits filed in U.S. district courts since 2000 are online and available free for analysis. This treasure trove of data was made possible by Stanford Law School’s Intellectual Property Litigation Clearinghouse. As stated on the website, “The database includes real-time data summaries, industry indices, and trend analysis together with a full-text search engine, providing detailed and timely information that cannot be found elsewhere in the public domain.”

Data of such enormity ought to yield to wonderful findings from data mining, statistical analysis, data visualization, and benchmarking. It should be a shining example of the power of shared data for the collective good and also how information on the Web goes to the price of zero.

One other observation goes to costs. The database covers an average of 2,875 patent suits filed per year. What is the cost of all that litigation? Others have estimated the average cost of a patent lawsuit at something like $2 million (See my post of July 21, 2006: updated costs; and June 11, 2007: more data on patent litigation costs.). If the pace of filings and average costs are correct, spending on patent litigation would reach $5.7 billion per year! That sounds too high to me.

These findings come from a survey of 235 mostly-US companies by the IT Policy Compliance Group (IT PCG) as reported in Info. Mgt., Vol. 43, Jan./Feb. 2009 at 10 (See my post of Feb. 6, 2009: savings from the various practices; and Feb. 7, 2009: costs of litigation hold practices.).

1. Notify affected employees of legal holds on information within one hour
2. Maintain evidence about the handling of information