Archive for November, 2010

Some thoughts on legal education and practice

Published 30 November 2010 Lawyering , Learning 1 Comment

The law in England and Wales is a vital place to be at the moment. Not only do we face the same economic chaos as everyone else, but there is the prospect of fundamental regulatory change as the Legal Services Act 2007 comes into force, coupled with a shift in the balance of power between firms and their clients (driven by economics, but also by other factors) and the rise of legal process outsourcing. As a result many firms are gradually reinventing themselves in a variety of ways — some public, some private. (Those that are not thinking about the future as a very different proposition from the past are destined to fail. Tony Williams made this point in his address to a conference I attended last week, and he is very right.)

So firms face serious pressures on their structure and downstream demand. Now there is a (related) challenge to the traditional forms of upstream supply. Baby lawyers are very likely to be created in different ways in the future. There are lots of places where more information can be found (here is a good place to start), but I wanted to concentrate on some things that occur to me from my own experience.

Some personal background (skip if you like)

I was lucky enough to study law as an undergraduate at the University of Warwick in the mid-1980s. From its inception in the late 1960s, this institution pioneered a different approach to the study of law — examining it in its social and human context, rather than as a disembodied corpus of statutes and cases. This is a more common view than it used to be — my Warwick generation was one of the last to be seen by the law firm market as somewhat unusual. Amongst other things, academics at Warwick promoted clinical education as part of an academic course. I didn’t take advantage of this opportunity, as I had set my sights on an academic career at a fairly early stage. (This was partly a reaction to my vicarious experience of private and in-house practice during a period of work prior to unversity, and partly a recognition that I didn’t have the right stuff to be a professional success.) I therefore spent four years (plus an additional master’s year in Italy) studying more law and becoming increasingly academic. One exception to this was the Summer that I spent attached to Wayne State University Law School. This short exchange programme opened my eyes to the different way that US lawyers are educated, and to the wealth of experience that JD students bring to their studies (and future careers) from their undergraduate degrees.

So then I started on my academic career, teaching subjects that students tended to undervalue and even to reject. Why? Mainly because, by the early 1990s, there was a growing attraction to legal careers in the City of London and other commercial centres where high legal salaries were becoming common. Put bluntly, many of my students didn’t have an interest in the law (especially not as a subject for academic study): they just wanted the kudos and financial reward of being lawyers. At the same time, I was aware that some of my fellow law graduates who had entered the legal profession were less than satisfied — they missed having studied subjects they really enjoyed (anything from Physics to History) as undergraduates. As a result, I became much less convinced than many of my colleagues that a law degree was a natural precursor to a legal career. (It is possible in the UK to become a lawyer with a non-law degree by taking a one-year conversion course.) I often stuggled with the regularly-expressed view of the late Peter Birks that legal practice and a law degree should be closely entwined.

On leaving the academy for legal practice (albeit in a support role), I found myself for the first time in the company of many lawyers who hadn’t had the benefit of a law degree. This has been a mixed experience over the past ten years. On the one hand, I do not think I could say with any certainty which of the partners in the firm I work for have a law degree. By the time someone has marked themselves out as an outstanding lawyer and worthy of partnership, their undergraduate degree is largely irrelevant — the expertise developed and experience gained in practice is more significant. On the other hand, I feel that some of our less-experienced lawyers may miss the breadth of legal understanding that comes from a law degree and cannot be replicated in a conversion course. As I said when I taught it, the insights provided by the philosophy of law are not worthless — they help good lawyers make the right intuitive leaps when faced with novel fact situations or legal scenarios.

(In case it needs saying, these observations are purely personal, do not reflect the views of my past or present employers, and do not reflect on any particular individuals.)

What do I think about the state of legal education currently (welcome back if you tuned out of the memoir)

In general terms there is a tension between the legal profession and legal educators (at university level anyway). This is exemplified in the recent remarks of Nigel Savage, Chief Executive of the College of Law (until about 20 years ago, the College had a monopoly on the training of prospective solicitors).

Let’s take the undergraduate LL.B law degree. What does it really prepare students for? It is taught largely by individuals who have never practised law and who increasingly have PhDs in a wide range of areas that bear no resemblance to the practice of law. Students are required to spend a semester – or if they are lucky an academic year – studying contract law, at the end of which they will never have seen a contract. Students will be told they are taught to think like lawyers. They are not. They are taught to wade through bizarre factual problems, which is a useful exercise, but what they really need is to think in terms of solutions.

Richard Moorhead (a fellow Warwick graduate) has dealt compellingly with a similar objection by the Legal Services Institute, that universities play no part in the creation of new law.

We regularly engage with the judiciary, are cited in their judgments from time to time and train them on current developments. In other words, our research activity is regularly shared with industry, public bodies, government and governmental agencies and it informs our teaching. If the reader will permit me a rare moment of modesty, I should also say we are by no means atypical.

A legitimate question is to what extent does this benefit students? This is one of the many known unknowns of legal education. I believe it does (indeed I have a little data suggesting it does) but I cannot really prove it. I believe that being taught by someone who is working (I hesitate to use the phrase but I can find not other) at the cutting edge is an experience which has significant motivational benefits for student learning but also teaches them important lessons about how law is constructed and fought over and the context which law and lawers operate within. Much of the best research being conducted in law also ensures they understand how contextual law is. A lot of law depends on personalities, politics and money. It is a human system. Understanding the social, economic and political contexts within which law is created and functions is, in my view, an essential part of a modern legal education. Context is everywhere and needs to be better understood. One reasons is that students have to better understand ‘facts’: to my mind legal education focuses far too strongly on the rules that are handed down. Another is that context is vital to understanding the utility of law: in some contexts this means developing a better understanding of philosophical constructs like justice in others this is about starting the development of commercial awareness. Of course commercial firms commonly request this from applicants but I believe it has a broader significance. A key lesson which will be learnt through the Legal Service Act reforms is how justice and business rub up against each other. One of the reasons the professions may be about to hit trouble is they have largely been unprepared for this because they have focused on the internal norms of the legal system rather than the political and economic forces that shape it.

I agree entirely with Richard. The examples he gives of the ways in which he and his colleagues influence the law fit perfectly with my experience in a different university. One of my former colleagues was largely responsible for the creation of the enduring power of attorney, which fixed a fundamental problem with the management of the affairs of the mentally incapable. Another became and still serves as a judge of the Constitutional Court of Bosnia and Herzegovina, whilst remaining an active academic.

However, I think we still have to deal with Nigel Savage’s concern that undergraduate lawyers are unreasonably promised that they will become able to think like lawyers. I recall being uneasy about making such a statement myself. What does it mean to think like a lawyer? Do academic lawyers think in different ways from practising lawyers? Do academic lawyers address their subject material in a substantially different way from academics in politics, history, sociology or literature? Is ‘thinking like a lawyer’ just a pig in a poke when sold by the academy?

It is often useful to see what others think of us, and this is certainly true of the Lord Upjohn lecture given by David Edmonds, Chair of the Legal Services Board, earlier this month. Edmonds is not a lawyer, but is hugely experienced in public and private sector leadership roles. The LSB is responsible for overseeing the whole range of regulators of legal professions in England and Wales. That is the context from which Edmonds spoke about the challenges facing legal education.

Let me, as a layman, suggest some areas that education and training needs to cover:

  • Navigating the law
  • Professional skills – particularly in applying legal principles to the facts of the case, but also the procedural knowledge applicable to different areas of law
  • Functional skills, such as drafting and advocacy
  • Client-handling and other wrongly termed soft skills – every other part of the economy regards those as professional and rightly so.
  • Management skills and commercial awareness
  • Ethics – last, in this case, implies anything but least.

Ethics is an tricky one — John Flood always has interesting things to say about this issue, but I haven’t had the chance to grapple with it yet.

The others are more familiar to me. Unsurprisingly, I am confident that degree courses in law can cover the first point and most of the second. Navigating and applying the law is at the heart of any law degree. They may struggle with some of the procedural details, but many students will acquire that knowledge in optional courses. The rest is a challenge: functional, soft and management skills, or commercial awareness, are rarely at the core of any undergraduate programme. And in fact I do not think they would be well-placed there anyway. It is important to know and understand the context of the work being done to get to grips effectively with such topics.

I am not even sure that these elements can be effectively assimilated during the period of vocational training that students undergo before joining law firms. Although it is far more progressive than the old Law Society Finals course administered by the College of Law decades ago, the Legal Practice Course is still usually distinct from real legal practice — few firms actively engage with this stage of legal education. It is only when trainee solicitors arrive in the firm that they can start to understand properly what clients require of lawyers — because they are finally faced with real clients expressing their requirements in clear and certain terms. What better learning experience could there be?

If the training contract is where our lawyers really start to become lawyers (not just thinking like them, but being them), should we not focus on making this period the best learning experience possible? Can lawyers learn from the professions where learning really works on the job?

If I Only Had a Brain — how to become the wisest in Oz

Published 22 November 2010 Irrationality , KM , Learning , Science 1 Comment

Last week, a random tweet by James Grandage prompted a chain of thought. He tweeted:

My response was to suggest that he had it already: a brain.

On reflection, however, it appears that James was seeking what many firms want — a brain for the whole organisation. To be able to create and recall institutional memories, to process sensations gathered by ears and eyes and to use those sensations to engage with other organisations (or people) and their brains.

In the name of knowledge management, many organisations have created databases and repositories that are intended to operate as brains as far as the technology will allow. Unfortunately, their actual performance often falls somewhat short of this promise. Why might this be?

One answer is suggested by the experience of the Scarecrow in Frank L. Baum’s Wizard of Oz. You will recall that he accompanied Dorothy on her journey to Oz in order to ask the Wizard for a brain, because that is what he wants above all else. As they travel down the Yellow Brick Road, the Scarecrow’s shows by his actions that in fact he has a brain, and can use it. When they get to Oz, he is recognised as the wisest man there.

Many law firms are on a similar journey. They labour in the belief that all they need to complete themselves is a know-how system, or database, or whatever terminology they use to describe their brain. In reality, they have one — distributed amongst their people — which they often use to spectacular effect. (For examples, see the FT’s report on Innovative Lawyers, which highlights a range of activities — very few (if any) of which depend on the existence of a KM system.)

Often, however, brains (whether individual or organisational) are used spectacularly poorly. I suspect that this is partly why KM databases fail so well: people just use them badly — they don’t use them, or they don’t volunteer their insights to them. (There are other, better, reasons, but I want to concentrate on this one for now.)

How actively do people use their own brains to reflect and learn from their experiences? Or to seek information or insight that challenges what they think they know? I must confess that I see little of this. (I try to do it myself, but I am sure I have blind spots where I accept a partial view of reality, rather than continuing to seek a better truth.) I am sure this critique and creativity happens, but for most people it is concentrated in areas where they are already experts. For lawyers, that is their area of legal expertise — not the work that goes on around them to support the firm in other ways.

As an example of this, consider the know-how system. Whilst the research I linked to above (and again here), dates from 2007, I still see people advocating such repositories as the cure-all for law firms’ knowledge ailments. At the very least, they ought surely to recognise that there is a contrary view and argue against it?

Another example that comes up repeatedly is the assertion that creative thought depends on using one’s right brain, rather than the analytical left brain. However, this depends on an understanding of neuroscience that was undermined twelve years ago. The origin of the left-right brain model was the research of Roger Sperry, who was awarded the Nobel Prize in 1981. Despite the attractiveness of this model (especially to a range of management authors), neuroscience, like all the sciences, does not stand still — all theories are challengeable.

The watershed year is 1998, when Brenda Milner, Larry Squire, and Eric Kandel published a breakthrough article in the journal Neuron, “Cognitive Neuroscience and the Study of Memory.” Kandel won the Nobel Prize two years later for his contribution to this work. Since then, neuroscientists have ceased to accept Sperry’s two-sided brain. The new model of the brain is “intelligent memory,” in which analysis and intuition work together in the mind in all modes of thought. There is no left brain; there is no right. There is only learning and recall, in various combinations, throughout the entire brain.

Despite the fact that this new model is just as easy to understand, people still fall back on the discredited left-right brain model. Part of the reason, I think, is that they don’t see it as their responsibility to keep up with developments in neuroscience. But surely using 30-year-old ideas about how the brain works brings a responsibility to check every now and then that those ideas are still current.

Something similar happens with urban legends. Here’s a classic KM legend: Stewart Brand on the New College roof beams.

It’s a good story, but not strictly true. In fact the beams had been replaced with pitch pine during the 18th century, the plantation from which the oak came was not planted until a date after the hall was originally built, and forestry practice is such that oak is often available for such a use.

It is not the case that these oaks were kept for the express purpose of replacing the Hall ceiling. It is standard woodland management to grow stands of mixed broadleaf trees e.g., oaks, interplanted with hazel and ash. The hazel and ash are coppiced approximately every 20-25 years to yield poles. The oaks, however, are left to grow on and eventally, after 150 years or more, they yield large pieces for major construction work such as beams, knees etc.

If we rely too heavily on documents and ideas that are familiar (and comfortable), we run the risk of selling ourselves short. As Simon Bostock has recently pointed out, there is almost invariably more interesting stuff in what we have not written down than in what we have captured (or identified as ‘lost knowledge’). Referring to another KM story (NASA have lost the knowledge that would be necessary to get to the moon again), he points out that what was really lost was not the documentation, but the less tangible stuff.

This means, basically, that even if NASA had managed to keep track of the ‘critical blueprints’, they would have been stuffed. Design trade-offs are the stuff of tacit knowledge. Which usually lives inside stories, networks, snippets of shoptalk, chance sneaky peeks at a colleague’s notes, bitter disputes and rivalries…

In knowledge terms, we’re about to live through another Black Death, another NASA-sized readjustment.

Smart organisations will recognise this in advance and avoid the archaeological dig at the junkyard, the museum and the old-folk’s home.

Archaeology is interesting, and can shed light on past and present activities, but we don’t use Grecian urns to keep food in any more. We use new stuff. The new stuff (whatever it might be) should be our continuing focus. That’s how we should use our brains, and how those supporting effective knowledge use should encourage brain-use in their organisations.

KM in law firms: rising to a challenge

Published 2 November 2010 Culture , KM , Lawyering , Tradition 3 Comments

Spurred on by a disappointing conference experience, Greg Lambert has challenged law firm KMers to justify their existence.

He starts:

I have to tell you that coming away from the ARK conference on Knowledge Management, I was a little disappointed with the direction that many of the law firms are taking with the idea of Knowledge Management (KM). Some of the presenters were showing products that were very “flashy” and useful, but weren’t really what I would consider “KM” resources.

Many of them were “Client Services” products… or were fancy dashboards attached to accounting or time and billing resources, but not really what I would think of when it came to capturing “knowledge” at a firm.

And finishes:

The entire conference seemed to be about keeping KM relevant, by expanding the definition of KM and taking it in the direction of Law Practice Management, or Alternative Fees, Accounting and Financial Interfaces, or Client Development Resources. All noble things for a law firm to do… but again, completely outside the scope of what KM was meant to bring to the firm. As Mary Abraham put it in a tweet:

“Why is #KM obsessed with PM? Because desperate knowledge managers are searching for a raison d’être.”

As you can probably tell, I am a little depressed after hearing everyone basically say that in order to stay relevant, you need to abandon most of your objectives and principles and turn KM into something else. I’m hoping that I’m wrong.

There is a lot bundled into Greg’s succinct post, and I want to try and unpack and deal with as much of it as I can here. (I’ll probably fail, but that’s what the comments are for, no?)

The first thing to note is that Greg is absolutely right to crtiticise the use of the ‘knowledge management’ label for activities that are properly the province of other management disciplines. I have always taken the view that there is a place for KM to improve business support functions in law firms (as well as the work of the lawyers themselves). However, if firms’ BD, HR or finance functions find better ways of presenting the information that people need to operate properly, that doesn’t feel to me like a KM project — it feels like an improvement in HR or finance.

The test for ‘KM-ness’ is, I think, similar to a piece of advice for CEOs that I read in one of the HBR blogs a couple of weeks ago.

Top executives usually say they set their priorities and then figure out how to implement them. But in this process many executives make a critical mistake. I’ve noticed this when I’ve mentored new CEOs. They say, “Here are the top five priorities for the company. Who would be the best at carrying out each priority?” Then they come up with themselves as the answer in all five areas. It might be the correct answer, but it’s the wrong question.

The question is not who’s best at performing high-priority functions, but which things can you and only you as the CEO get done? If you don’t ask yourself that question, your time allocations are bound to be wrong. …

…[Y]ou really have to hold yourself back from taking on other functions or tasks even if you might excel at performing them.

The same is true for non-CEOs. So what is it that KM (and only KM) can do? That is the proper focus. So if KMers (from law firms or elsewhere) find themselves presenting at conferences, their material must, I think, be something that could not reasonably fit at a BD, HR, finance, or IT conference.

On the other hand, Greg’s perspective on KM may be a little limited. It isn’t clear from this posting exactly what his definition of proper law firm KM is, but there is a hint in the statement,

these projects were very cool, they were very useful for getting information in the hands of clients or attorneys, but to call them knowledge management resources would be stretching the truth a little bit because they didn’t really capture and reuse existing firm knowledge in the traditional meaning of knowledge management.

This isn’t the place for a debate about the definition of KM, but I think it is important to recognise that ‘capture and re-use of existing knowledge’ doesn’t do justice to the breadth of possible (and justifiable) KM activities. For me, Dave Snowden’s draft definition captures this fairly well:

The purpose of knowledge management is to provide support for improved decision making and innovation throughout the organization. This is achieved through the effective management of human intuition and experience augmented by the provision of information, processes and technology together with training and mentoring programmes.

(As an aside, the comments on Dave’s definition repay close study and reflection, as does the blog post that precedes it.)

However, Greg’s approach to KM is not an unusual one (especially in law firms), and I think there is something to explore here. The conference he attended, “Knowledge Management in the Legal Profession” is a regular event in the Ark Group calendar (as is the equivalent in the UK). Whilst there are similar events that concentrate on KM in specific sectors (notably the public sector), it appears that legal KMers (deliberately or accidentally) tend to dissociate themselves from KM developments in other types of organisation. When I have attended general KM conferences, I have often been noted as a rare legal delegate. If my impression is correct, it is a great shame — I have learned much from my colleagues in law firms, but even more from those in government, industry, commerce and banking. (Sometimes this is a process of learning by distinction — industrial KM is necessarily very different from that in professional services. It is still valuable though.) I think another consequence of a narrow focus could be that conferences on legal KM may run out of clearly KM-related topics so that they start to rely on presentations such as the ones disappointed Greg.

Interestingly, Richard Susskind has a parallel complaint to Greg’s complaint in The End of Lawyers? Susskind remarks at one point in the book (unfortunately, one of my colleagues is reading my copy, so I can’t give a proper quote or reference) that lawyers often talk about the work they do as a form of project management or similar non-legal skill. Susskind finds this odd — why do some lawyers apparently lack confidence in the value of their legal skills? Why, equally, do they think that clients might be interested in paying over the odds for a gifted amateur project manager (albeit with legal skills) rather than a professional project manager who would do a better job (and allow lawyers to focus on their own professional specialisms). Just as some practising lawyers feel they can turn their hands to many different activities, so do many legal KMers. The result is a lack of clarity about what they should actually be specialising in.

A final point. Greg refers to a specific comment that “caught my attention, and made me wonder if KM just needs to be scrapped at law firms altogether.”

When asked about “who” creates the documentation behind a firm’s model documents resource, the answer was that this would be a good opportunity for those in KM who were former practicing attorneys. (Translated: “You’ll need to have someone in KM do this, because no one else in the firm will.”)

I am not sure whether this is a reflection of the lack of value placed on KM, rather than the choices firms make. (And possibly a difference of approach on either side of the Atlantic.) In the UK, at least, law firms have long relied on model documents (otherwise known as precedents or standards). Before we had dedicated KM lawyers, those precedents were drafted by the most experienced (and expert) lawyers in the relevant field. In some teams that is still the case, but now many firms depend on their Professional Support Lawyers to create at least the first draft of the key documents. That is not because the firm values those documents less, but because they have found a more cost-effective way of producing a key resource. I am not sure that US firms have the same dependence on precedents, so they have yet to prove their worth. If that is the case, I imagine that it is probably right for the KM team to take the lead and show the practising lawyers why there is value in model documents. (There is, however, a good case for saying that everyone has a responsibility for KM, just as Larry Hawes recently argued for collaboration and Enterprise 2.0.)

Overall, then I am sympathetic to Greg’s challenge (and we should never be complacent that what we do is unassailable), but I think things may be more complex than he asserts.

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