Archive for April 3rd, 2008

Tenses and legal dominance

In an Easter-flavoured post on Language Log, Geoff Pullum summarised the argument that the English language has no future tense.

The claim I’m making is not that reference to future time cannot be made in English; of course it can. And the claim is not that will cannot be thus used: probably over 80 percent of its occurrences involve some kind of future time reference. My claim — Huddleston’s claim — is simply that the varied ways we have of referring to future time in English are not part of the tense system; they involve a significant-sized array of idioms and periphrastic work-arounds — and the modal verb will has no particularly privileged place in that array.

Geoff’s article prompted an tangential thought: Is this linguistic anomaly — the extensive use of the verb ‘will’ to denote future time and its potential for confusion with ‘will’ as an expression of volition — one of the factors that has contributed to the dominance of Anglo-American law in commercial law?

Let’s get the dominance question out of the way first. Bruce MacEwen, in his analysis of last year’s Global 100 list of law firms, points out “the continuing domination of the lists by firms headquartered in the former British Empire.” His explanation?

I believe it’s fairly obvious:  Anglo-Saxon common law has a particular genius for innovation.  Imagine trying to structure a complex multi-jurisdictional project financing vehicle under French Civil Law.  I’m no expert, but I don’t think it could be done.  Not only does the common law presume that the wishes of voluntarily transacting private parties should be honored, every time such a transaction is challenged and either enforced or overturned, we have future guidance for our behavior.

(I agree with Bruce that imperial hegemony is not enough to justify this dominance. Britain’s historical geo-political power is long-gone and was not several orders of magnitude greater than the French, Spanish or Dutch empires: each of these modern nations can claim one firm in the Global 100 list. The USA’s current commercial power is fickle and does not necessarily support the global spread of its law firms.)

But where does the genius for innovation come from? Bruce’s example of structuring a complex transaction suggests the ingenuity of the Anglo-American draftsman. I wonder if the ingenuity originally rests with litigators. The common law tradition depends heavily on oral argumentation. In a language where there is an inherent confusion in the statements people make (when I say that I will do something, can you be certain that I am making a promise rather than a prediction?), the resolution of disputes is almost certain to involve the most imaginative propositions. Those propositions are then reflected in an immense juristic corpus (the common law itself) which is at the heart of the most imaginative contractual drafting, even if only implicitly.

Arguments about alleged promises are at the heart of all legal systems. There are undoubtedly many other elements that contribute to the current Anglo-American dominance in the law, but the special privilege of English-speaking lawyers that their language captures that argument in its grammar surely plays a part.

My mate, not yours

In my last post, I said that I wanted to refer constructively to something that Doug Cornelius wrote in his series of blog posts on Household KM. Here it is.

Doug’s posts are an interesting review of the tools available to manage domestic calendars, contacts, libraries and information. I found his take on contact management particularly insightful. As Doug puts it, “the contacts issue is still a knowledge management failure.” I don’t think this is unique to household contact management, and Doug pinpoints the problem:

the line between personal and business contacts is very gray. With the calendar it was easier to develop the taxonomy between personal time and business time based on the time of the appointment. With contacts I have not found a meaningful way to distinguish between contacts. Some contacts are clearly personal. My mother for instance. But what about my college roommates? After many nights of [drunken fraternity parties] serious studying, many of them have become respectable and should be part of my professional contacts. The same is true for my law school classmates.

There is also a big overlap of contacts with The Wife. There is not a clear distinction of who “owns” some of the contacts and therefore who has the better information.

I think there are some tricky underlying issues here that resonate with contact management within a business too.

In professional services firms, the client relationship must necessarily be at the heart of the business. This is not always well-managed, but CRM technology is a side-issue. These are personal relationships as much as commercial ones. There is immediately a tension between what the firm needs — as much accurate information about its clients as possible — and what people are prepared to share.  When lawyers, architects or accountants share knowledge about their work, they can be reasonably confident that someone else’s use of that knowledge will not adversely affect either the object shared or the sharer. For example, a lawyer who writes a briefing note about issues arising out of a novel transaction will not find when that note is used by one of their colleagues that their status is diminished as a consequence, or that the transaction itself is affected. However, the same is not true when information about people and relationships is shared.

When I tell the firm about the people I know, I run the risk that this information may be used in ways that could reflect badly on me, harm the relationship that I have with those people, or even cause the relationship to cease. Given this risk, it is not surprising that people are often reluctant to engage fully with their firm’s CRM systems. Paradoxically, the better a relationship that someone has with their client, the less likely it may be that detailed information about that client is provided to the firm. Imagine someone in Doug’s position — some of his law school friends may have become senior in-house counsel. Potentially, those relationships could generate real benefits for the firm. However, allowing the firm access to the information that could produce those benefits may also jeopardise the personal relationship. Which would you put first?

When firms were smaller, and technology was not a driving force, client relationships could be managed with much more respect to the personal relationship. People within the firm could have more confidence that they could control the use made of their contact information, because they could monitor either the people using the information, or the use itself. As firms grow, the distances between the owner of contact information and the user become too great to allow that monitoring. When technology is introduced to the equation — making it easier for contact information to be used without seeking the consent of, or even notifying, the person with the original relationship — people’s fear that their client or personal relationships might be misused increases significantly.

For those reasons, I think effective firmwide (rather than personal) client relationship management is the hardest KM nut of all to crack in a professional services firm. It may be easier in other sectors; I am not familiar with them.


Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,047 other followers

Recent micro-blog posts

Categories

Interesting stuff...

Bookmark and Share

When…

April 2008
M T W T F S S
« Mar   May »
 123456
78910111213
14151617181920
21222324252627
282930  

Follow

Get every new post delivered to your Inbox.

Join 1,047 other followers