Articles Posted in Tools

I am a broken record on my mistrust of the term “best practice” (See my post of March 20, 2009: seven charges against best practices.).

At the same time, no relativist I where anything goes, some practices I condemn as mistaken. Not to review bills from law firms that charge by the hour would be one, since everything from innocent errors to deliberate fraud could happen. Not to produce basic reports well from a matter management system would be a serious flaw. Not to praise and encourage lawyers and staff who do well holds back a law department. And so on I could pile up the slag heap of managerial missteps.

But you can’t turn a bad practice inside out and claim that not doing it is a best practice. Reviewing bills, reporting from database, and recognizing achievements are hardly best practices. They are solid, middle-of-the road, expected practices. If there are exemplary practices, and this too I firmly believe even if they are not “best,” they must dramatically improve on the staples. For an article by me on best practices, click here.

This idée fixe of mine has roots far back in this blog. A sample of the reasons why I doubt the existence of “best practices” gives me an opportunity to rehearse some of my arguments.

A pattern of more and more law departments doing something hardly proves that the something is optimal (See my post of March 16, 2009: a best practice is not necessarily a trend.).

The circumstances of each law department differ, significantly, so force-fitting something that flourished at a different department may fail (See my post of Nov. 25, 2009: path dependency limits successful imitation of a practice.).

Good survey methodology urges the use of seven-point scales, known as Likert scales, such as Very improbable (rated as 1), Improbable, Somewhat improbable, Neither probable nor improbable (4), Somewhat probable, Probable, and Very Probable (7). Most respondents don’t do well with more elaborate scales, there needs to be a neutral middle point (4) , and two calculations favor the seven-point choice.

If a second question asks about the importance of an event, again on a seven-point Likert scale, you can multiply the probability score by the importance score. Many two-by-two quadrants follow this methodology: respondents rate something on two scales, multiply the scores, then distribute them to the appropriate quadrant.

Another neat calculation becomes easy, as explained in Ron Hale-Evans, Mind Performance Hacks: Tips & tools for overclocking your brain (O’Reilly 2006) at 171. If you double the ratings, the scores that come from multiplying one scale score by the other for something, you get a result ranging from 2 to 98, which closely approximates a percentile scale (0-100).

A mainstay of my consulting principles holds that one of the best contributions a consultant can make to a general counsel is to open the toolbox. The tool box of management practices includes lots of choices and approaches, the mixing and matching of which to the particular circumstances of the law department make the most sense (See my post of July 6, 2011: 500 hammers and best practices.). The more alternatives you know about as a manager, the more likely you are to select the right tool for the job.

Tool-box management covers a set of inter-locking beliefs. One size definitely does not fit all; syncretism prevails in the contest between ideological poles; context shapes the desirability of a management choice; always keep adding to and improving; priorities change from time to time and so should management initiatives, resources and their implied limits guide what is possible. All these ideas relate to a management style that favors the toolbox.

Henry Petroski tells us in his book on design that “By the latter part of the nineteenth century, some five hundred different types of hammers were being produced in Birmingham, England, alone.” If the market supported such an array of one particular tool, if no one hammer was manifestly the best, if different ones suited different needs, how can law departments today not support as large – actually much larger – an array of management practices? How can the term “best practice” have any credibility?

Success through Failure: the paradox of design (Princeton 2006) by Petroski makes two salient points about the design of anything: (1) it can be improved and (2) failure yields more insights than success precedents. To his first point, you can sharpen any practice in any law department. A “best practice” is like infinity: describe a practice and anyone can go higher with it. Regarding failure, if we were to assume some practice were optimal, acting on that assumption will assuredly breed disappointment eventually because we would not learn thereafter. Only change, with the inevitable and occasional disappointments or failures, leads to continual upgrading.

Lisa Damon spoke recently at a CTTymetrix conference and noted ten tools that her firm has used from the Six Sigma tool chest. Many of them I have written about; some are new to this blog. Here are thumbnails of them in terms of how law departments might apply them.

Voice of the Client – to ask what the end user wants (See my post of Sept. 10, 2005: paying law firms based partly on client satisfaction scores; March 24, 2007: Reed Smith and its program to interview clients; June 1, 2008: client satisfaction survey by a firm and possible learning by a law department; June 20, 2008: Eversheds and Tyco; Feb. 16, 2009: Bruce Heintz on role of relationship partner; May 19, 2011: partners vs. consultants who interview law departments; and May 30, 2011: response to partner vs. consultant post.).

WIN’s – to “work it now” and make quick changes that these efforts uncover

James Stein describes “digraphs” in his book How Math Explains the World: A Guide to the Power of Numbers, from Car Repair to Modern Physics (HarperCollins 2008) at 3. According to Prof. Stein, “A digraph is a diagram with squares and arrows indicating the tasks to be done, the order in which they are to be done, and the time required.”

His example shows a series of boxes with arrows to indicate the flow of a process and how long each step should take. A digraph immediately helps figure out critical-path scheduling and moves Stein to a discussion of priority scheduling techniques in mathematics.

When a law department records and studies a process, it should incorporate the elements of a digraph. What needs to be done, in what sequence and with what handoffs, all set in the context of how long the different parts of the process should take. Some indicators of volume and number of people involved would enrich a digraph.

So controversial has writing history become, so clotted with attacks on objectivity of historians in the past, that a special discipline has arisen – historiography. Historiographers situate historians and their writings in their governing milieu, where limits on their tools or awareness or freedom affected their topics, assumption, research and interpretations. Ideologies that prevailed in the society of the historian, not to mention personal belief systems, warped the findings and conclusions. Financial and reputational considerations hung heavily over any historian. None of us can achieve full objectivity.

For example, from the remove of decades, historiographers of the legal industry may note that those who write about law departments now were strongly influenced by what sells magazines or induces readers to sign up for conferences and webinars. It may be recognized that the ascendant market ideology skewed most writing to a competitive, market view. Or, historiographers may say we all over-rated or under-rated technology. None of us can escape the pull of our culture and mindset.

Richard Koch and Greg Lockwood, Superconnect: Harnessing the power of networks and the strength of weak links (Norton 2010) emphasizes the potential power if we reach out to of our so-called “weak connections.” Weak connections describe our acquaintances as compared to “strong connections” who are our close friends, family and workmates we see most days. Your strong connections are more likely to be similar to you in background, knowledge, and beliefs. Weak connections are former colleagues, classmates, members of the same club or religious group, sorority buds, the lawyers you met at the conference or the vendors you spent time with at LegalTech. The variety of viewpoints and knowledge available through weak ties confers advantages for you if you consult them over the more homogenous knowledge of your strong ties. For example, more people find jobs through their weak ties than through their strong ties.

The authors refer to “hubs” as the junction of strong and weak ties. Your pilates pals, the monthly poker group, members of your reading club, the Parent-Teacher Association leaders, your neighbor with the Collie dog…. The more weak ties you maintain and the more and varied hubs you belong to, the more resources you can draw on.

“Study problems, not periods” appears in Deirdre N. McCloskey, The Bourgeois Virtues (Univ. Chicago, 2006) at xiv, where she quotes an unnamed historian. The injunction for historians applies to managers of law departments. It is not very useful to talk about “The Decade of Formation” (the ‘70s and the coalescence of capable in-house legal departments), or the “Decade of Automation” (the ‘90s and matter management systems), or to impugn myself “The Decade of Data” (See my post of June 16, 2010: prediction that measurement will dominate this decade.).

Time periods arbitrarily carve out units of analysis, but problems thread throughout. The perennial problems of management – how to nurture professional satisfaction without promotions, whether to invest in software, why people need direction to get along – make more sense to ponder than manufactured generalizations about arbitrary periods of time. The phrase “The Roaring Twenties” captures a zeitgeist, but it started before the ‘20s and lasted long after. Those who generalize around time periods usually fit the facts to the fiction, a Procrustean nip or stretch to support the broad statement, and privilege cleverness over usefulness.