Archive for the 'Lawyering' Category



Challenging the orthodoxy

Given the focus of this blog I suppose I should welcome Michael Idinopulos’s almost heretical conclusion that law firms are misguided in using wikis to support know-how activities (at least as an initial use case).

From an adoption standpoint, however, general know-how is usually a bad place to start. Lawyers are incredibly busy, and general know-how lies squarely above-the-flow of their daily work. Because lawyers lack incentives to contribute their knowledge to the rest of the firm, invitations to participate in social software implementations are often greeted with a polite “Thanks but no thanks.”

I am not sure how I feel about this, so bear with me while I try to work it out.

My initial thoughts were that firms might be using wikis to drive know-how into the flow, rather than leaving it above the flow. This could have only a limited impact initially, but I don’t know whether this is because know-how will always be above the flow, as Michael argues.

Michael starts his critique by recognising that the reason for the concentration on know-how is one of jurisdictional engagement.

The first decision-makers in a firm to “get religion” on social software are usually in firm-wide knowledge roles: CKOs, directors of know-how. They pursue general legal know-how because that’s their organizational jurisdiction. It’s the aspect of the firm’s activity for which they are responsible.

Obviously, I can only plead guilty on that point. Which is probably why the critique stings.

On one hand, I wonder whether Michael’s view is informed by his own expectations of how wikis might work. In this connection, I was very taken with Andrew McAfee’s simple approach to evaluating Enterprise 2.0 products:

I usually dodge questions about specific vendors and their offerings, and instead answer how I’d look at any particular deployment of collaboration software to see if it met my definition of Enterprise 2.0.

I find this pretty easy to do. I check to see if the environment meets three criteria: Is it freeform? How frictionless is contribution? And is it emergent?

In this context, the key criterion for me is emergence. As McAfee explains, “My best-effort definition of the phenomenon is the appearance over time within a system of higher-level patterns or structure arising from large numbers of unplanned and undirected low-level interactions.” If we set out to define a wiki as the place where know-how is stored, I am sure that success is by no means guaranteed. However, if it is just one place where know-activities can take place (not just storage, but capture of conversations and creation of know-how), I think we might have a really useful additional tool in our set. Not everyone has to be engaged, but if some are, then that is really valuable.

On the other hand, I do think Michael’s point about client engagement is a good one. I didn’t work in a law firm before e-mail, so I don’t know how the adoption process worked then. My guess, however, is that there was some resistance until it became clear that it made access to and by clients easier. I see no reason why wikis (and other novel technologies) should follow a different pattern. Michael gives excellent examples of wiki use across the firewall that show how successful this approach can be.

Except… For me, one of the things that wikis might do (admittedly to a lesser extent than blogs) is to expose people’s personal know-how processes. These are absolutely within the flow. Everyone has their own way of gathering the things that are important to them. For lawyers this is almost invariably paper-based. They have files and folders full of old agreements, articles, case reports and so on. Each of these can trigger a stored memory when necessary (and vice versa). I have a vision in which people can identify their own know-how by tagging it where it is (which is how I use delicious.com) and exposing their thought processes through a blog or collectively in a wiki. If wikis are in the flow for some, but not others, surely we should lead by example.

Coincidentally, Jack Vinson covered similar ground yesterday in asking “Do Web 2.0 tools help personal effectiveness?” The summary answer is “No.” In more detail, Jack is keen to underscore the distinction between the tool and the way in which it is used.

[T]he tools don’t make me more effective. It is the process in which I am using the tools. I can have a sheet of paper and a pen and be very effective, or very ineffective. The question is my process (and my mental state), not the tools I have at hand.

Those of us in a role where we can champion social software inside the firewall need to be aware of this. Our leadership must concentrate on processes and mental states. For some people this will clearly lead to a client focus such as the ones that Michael describes. For others, personal motivation may be enough to drive personal KM activities or even group know-how development.

The lesson I take from Michael’s ultimately justified corrective is that we should stop pushing when people are clearly resisting our fine words. There will be other opportunities elsewhere in the business. We should focus our efforts on the battles that we can win most easily. Once we are done with those, our successes will breed success elsewhere. (Crucially, this is a lesson for all types of tools, not just the ones that a particularly shiny and new at the moment.)

More on lawyers and innovation

Here are two bonus links following on from yesterday’s post.

From Tim Corcoran: Galileo Was Wrong: The Earth Revolves Around Lawyers.

On a number of occasions where we gathered with the board or executive team of an acquisition target in a secret location to discuss a business combination, we always invited the lawyers because there were items on the checklist that only they could handle. But they otherwise didn’t speak much. When outside lawyers were invited, they sat next to the in-house lawyers and spoke even less. Again, none of this is meant to demean the important role lawyers play in doing deals, but the point is they were there to identify and quantify risks in executing the deal so the business people could incorporate this into the financials, or choose to build versus buy if the risk was too great. We never asked for a go/no-go decision, and we didn’t ask for exhaustive explanations of the legal issues in play. We asked about the obstacles, the techniques to overcome the obstacles, and the cost of doing so — and not the legal cost, i.e., the legal bills, but the cost to proceed. For example, I wouldn’t want to know how much the law firm will charge to counsel us on new regulations; I wanted to know how complying with new regulations would impact the cash flow projections. Again, the point is, on the business side we rarely think of things in legal terms, but in terms of how legal issues impact our ability to proceed.

In point of fact, the earth does not revolve around the lawyers.

From Christopher Fahey: Innovation, Transformation, Therapy, Practice (via Scott Berkun).

The conversations around innovation over the past few years have in large part focused on producing innovation where it does not exist. It hasn’t been about innovation itself, but rather about cultivating innovation. It’s been about transforming groups of people who, without clever and forward-thinking leadership, would utterly fail to innovate. The literature, then, is aimed at people who fancy themselves as that same clever and forward-thinking leader.

To those of us whose everyday job is to innovate — e.g., designers — the hype around “innovation” has always seemed a little weird. As if not innovating has ever been an option for a designer. We do this all the time!

So what Nussbaum and the innovation cheerleaders have been talking about all along has not been about how innovative people can be more innovative. It’s been about how to take teams that cannot or will not innovate and getting them to actually come up with new ideas.

Perhaps we can only hope to create better bricklayers.

Lawyers: architects or bricklayers?

Yesterday lunchtime I managed to get out of the office for a walk at lunchtime. As I did so, I pondered a question that has been at the back of my mind for some time. It is my impression that innovation in law firms tends to occur most in the delivery of legal services, client care or in some peripheral law firm activity (marketing, finance, IT, etc). It is fairly rare that we see real innovation in the law itself coming out of law firms. (Some evidence for this impression is provided by the annual Financial Times survey of innovation in law firms.)

As I pondered and wandered, I admired the characteristic brickwork of Manchester’s historic cotton warehouses. Cruelly, I wondered whether many lawyers were simply bricklayers — putting the right blocks together in a particular way to achieve the desired result: an agreement or set of agreements to achieve the commercial aims of their clients. Extending the analogy further, there are significant similarities between the creation of a new building and the conclusion of a corporate or commercial transaction.

At the outset there is a client and the client has a need. No legal work is done without an external driver. Similarly few if any buildings are created purely speculatively. The client’s need (for a building to fit a particular purpose or for a new acquisition) is usually arrived at entirely without interference by professional specialists. However, once the need has crystallised, the professionals are needed to make the need a reality: an architect in the case of a building, a lawyer in the case of the transaction. At this stage, the client’s need might permit innovation (in building design or in legal structure). However, it is almost impossible for that innovation to create an opportunity for a new type of client need.

An example of the kind of innovation I mean is the development of steel-framed structures. Once the potential of that kind of building was realised by clients, the development of densely-built cities like New York and Chicago became possible. I can’t think of a legal innovation with an equivalent impact on the scenery of business, work, trade or commerce. (That is not to say that there isn’t one — it is late and my mind is tired.)

So at least one lawyer seeing to the client’s needs is an architect – creating the best structure to deliver what the client wants, dealing with other professionals (including regulators), managing key specialists (including hod-carrying lawyers), and ensuring that the client is kept happy. Innovation in all of those areas is possible, but it must be secondary to the need to deliver what the client needs as effectively as possible. In many situations (probably the vast majority), that effectiveness is probably most likely to come from doing the usual job. Similarly, many architects might want to be innovative, but ultimately the client wants something from the pattern-book, so that is what they get.

If my analogy is correct, it must have implications for our KM efforts. There is scope for KM to support innovation, but bricklaying lawyers need a different kind of innovation than the key architects. And innovations created by the architects might never relate to technical legal issues. How do we support them without knowing where the opportunities are?

Do you know where you’re going to?

Via James Mullan, here are “35 tips for getting started with social media.” The list is positioned thus:

If you are going to start using social media, you should at least have an understanding of what it’s about. Social media is not about the tools, the tools are only a facilitator.

Up to a point, Lord Copper. Actually, this is an interesting list, but it is not particularly coherent. Anyone facing the world of social media needs to answer a simple question for themselves: “why am I doing this?” There are many possible answers:

  • To find out more about the world of Web 2.0
  • To connect with people I already know
  • To connect with people I don’t yet know who have a common interest
  • To position myself or my business in this new market
  • To make money
  • To contribute information and knowledge

…and so on.

Some of these aims are honourable, some less so. That’s fine — the whole gamut of relationships can be facilitated by these tools. But you need to know what you want from them. Before working through this list of 35 tips, you need to be able to judge whether any one of them will help you serve your vision of what you want from social media. You also need to be aware that the authors of lists like these may have a different vision from yours.

The same is true for shorter lists. Kevin O’Keefe has named his top three social media tools for law firms. They are blogs, Twitter and LinkedIn. That may be true for those firms (and their clients and potential clients) that are comfortable with those tools. If they are just a me-too choice, that will be glaringly obvious to others. That is because the main goal of these tools is connection. If you or your firm feels more comfortable connecting in a different way (whether that is Web 2.0 or not), do that instead. Those you connect with will respect you for it.

And if you do follow Kevin’s advice, connect properly. Clients find it irritating enough when law firms stop producing traditional briefings. Imagine their discontent when you are no longer connecting with them via a blog that they have come to know and respect.

So what do you want from your social media? What will success look like? Can you sustain your interest in it for the long term? Once you have answered those questions, you are ready to think about the tools you need and a strategy for deploying them.

Yes — you do need a strategy. Think about e-mail. That is just a tool. It facilitates connections. But it has become a monster for many people because we didn’t think properly about how we intended to use it and the limits we should put on it. All the social media tools that look today like fluffy kittens also have the potential to become monsters as scary as e-mail. If we bear that in mind when giving them house-room, we might be able to cope better when they start to grow.

(Hat tips to Mary Abraham and Doug Cornelius for the link to Kevin’s post.)

With a little help from my friends

Knowledge management activities in UK law firms depend very heavily on people power — being more reliant on Professional Support Lawyers (PSLs) than their US and continental European counterparts. Despite this, the recent Knowledge Management in Law Firms conference had a noticeable technology focus. I’m afraid I set the tone in the first session with a couple of case studies on KM/IT implementations, but in my defence I did concentrate on the people issues rather than the technology. After that we had many screenshots of systems, mashups, search tools, RSS blogs, wikis and more. All the time we kept telling ourselves that KM wasn’t all about technology, but I wonder whether the historically divergent US and UK law firm traditions are moving closer together. We are using more technology and they are using more PSLs (or KM lawyers).

And then the final question silenced us all. One of the two search engine suppliers at the conference mentioned that they were accustomed to hosting conferences with the IT directors of their main customers — to find out what keeps them up at night and to gather information to drive development of their products. Coming at the end of a panel discussion focusing on how we meet client needs for KM support, I think many of us expected this statement to be followed by a suggestion that law firms might do something along similar lines for their top clients. But no — instead the question was whether the suppliers of the IT tools that we had all been discussing for the previous two days should be speaking to us instead of our IT directors. And, more pointedly, how did we feel about our project spend being controlled by someone who did not necessarily know (or at least understand) the strategic objectives underpinning our KM projects?

The supplementary question was probably a bit provocative. I hope most IT directors do understand and buy into their firm’s KM strategies. However, there is a bit of truth in the assumption behind it. KM projects have to fight for IT time and resources along with everything else that the firm needs — from recurrent and inevitable hardware replacement to big infrastructural projects or change driven by other parts of the firm. How do we feel about that?

Actually, is that the right question? Like the lawyer-client relationship, the IT/KM relationship is just that — a relationship. In order to prevent it becoming disfunctional (or to rectify it if a breakdown has already happened), I think it is helpful to remember two key points. Neither of them refer directly to how we feel. The two points are these:

  1. If something is wrong in a relationship, you cannot change it by focusing on someone else’s behaviour. The only behaviour you can guarantee to change is your own.
  2. The changes you make will have most impact if you understand what preoccupies the other person and play to it.

Let’s elaborate these two points, using the IT-KM relationship as an example.

It’s not you, it’s me…

One of the things that we often forget to take account of in our relationships is that what is important to us in not necessarily a priority for the other person. Just as our jobs give us a full workload, and many challenges, those whose services we need to call on are equally burdened. If we are lucky, they may respond well to a simple plea for attention, but this is most likely when our needs are already important to them. If a simple plea does not work, it will not be any more successful if it is just repeated more loudly. The toddler having a tantrum on the supermarket because they have been refused the sweets they demanded has yet to learn this lesson.

If we change our approach, we may be more successful in getting attention and changed behaviour on the other side of the relationship. If our needs are not a priority for someone else, we might be able to get what we want by framing our request so that it appeals to them more. A demand for more IT resource for KM is likely to fall on deaf ears, but a suggestion that IT and KM (perhaps together with BD) might develop products for knowledge sharing with clients (for example) is likely to command more interest. That would allow IT to demonstrate alignment to the firm’s strategic objectives. This is a similar (although more finessed) approach to that adopted by the teenager who argues that use of the family car would give them a safer return from a late party than waiting for a night bus.

It is rare in a relationship that any difficulties are due solely to the behaviour of one party. There is usually a balance of responsibilities. If we accept that, and consciously change our own behaviour, we can swing the balance in our favour.

What do you want?

Bearing all this in mind, what should KM people know about their IT colleagues? What are the pressure points for technology in law firms? It is difficult to generalise — firms and culture differ — but here are some suggestions. Think scalability, robustness and support.

Scalability: What are the implications of your proposed KM solution for more than a handful of users? OK, you can knock up a quick blog or wiki installation on your home PC, but how does that compare to a platform to support the needs of a thousand or more users? Does your ‘free’ software actually come with significant costs when scaled up beyond more than handful of users?

Robustness: Law firms are not unique in needing high levels of IT security, but that does not mean that the demands of a resilient technology platform should be minimised. It takes time and effort to keep a system running 24/7. At the moment, you may be comfortable that your new system does not need that kind of resilience, but you probably want it to integrate with existing security systems so that users do not have to log in afresh. Likewise, IT will need to be comfortable that no harm is done to the existing critical systems.

Support: Are the technologies that your favoured solution depends on known or unknown within your IT team? It is easy to underestimate the challenges involved in supporting new things. Once your new system takes hold, your less technically-savvy colleagues will expect the same levels of personal support that they currently get for the firm’s established systems. Behind the scenes, your apparently simple blogging platform (for example) is probably actually quite complex. Without an established body of knowledge in the IT team, supporting that platform is expensive — either in training or external consultancy. Whose budget is that coming from?

Bearing those concerns in mind, it becomes easier to understand the IT professionals’ exasperation at comments like those of silicon.com’s resident devil’s advocate, the Naked CIO, when s/he refers to IT’s weasel words. This comment is particularly telling:

But the part of this article that us foot troops are most likely to disagree with is the idea that we are scared to tell the real story. Not scared, but fed up. Fed up with being told that we are making it deliberately complicated. Fed up with our words being distorted by those that don’t understand our jobs. Fed up with our senior managers not having the courage to fight our corner after those distortions.
It takes two to tango. If colleagues in other functions were prepared to treat IT with respect, long suffering troops wouldn’t be driven to evasive tactics. We obfuscate because non-IT colleagues are getting worse in their assumptions about what is and isn’t a simple problem in IT. “I’ve knocked something up in Access, how hard could it be to make it work for 1000 concurrent users in a distributed environment with no performance issues?” People don’t challenge how hard it is to construct a major building or manufacture a car. That’s because those things are tangible. They can see that it’s difficult. IT is almost invisible, so otherwise sensible people somehow equate invisible to simple “because I can imagine how to do it in my head”.
Until we find a way to address the almost wilful lack of trust and understanding of IT in non-IT colleagues, this situation will worsen.

So the ball is back in our court. Trust and understand your IT colleagues — cooperation and effective collaboration will follow.

(Having said all that, I still have no idea why Neil Richards’s experience of IT projects in a bank was so different from his previous life in a law firm.)

Social software in law firms

About ten days ago, I attended a law firm breakfast meeting hosted by Headshift, the social software consultancy. Penny Edwards has blogged about the event and posted the presentation on Slideshare. It was a really interesting meeting and discussion, and well worth the very early start I had to make to get there from Manchester.

The presentation focuses on the value that social software can bring to law firms in the area of current awareness, which is a really interesting use-case. I think there is a lot that lawyers can do with social software, but it will take a while to wean them off Word and Outlook. (That isn’t to say that those tools do not have their place, but we know they are used sub-optimally.) On the other hand, information professionals in law firms are crying out for better ways of managing client and legal updates and research. Once they are up and running with new tools such as the ones demonstrated by Headshift, I think the lawyers will quickly come to understand the ways in which they can work better than Word or Outlook.

Following the presentation, Penny demonstrated some work that Headshift have done for Dewey & LaBoeuf. This integrates a wiki (Confluence, I think, although Headshift also work with Socialtext) with an enterprise RSS service (Newsgator). The main virtue of this work, as far as I could see, was the simplicity with which the elements were fitted together. Obviously we couldn’t see how they integrated with Dewey’s existing intranet, but I could see how they could slot in quite seamlessly.

As with most of these events, though, the really interesting part was the discussion. Fired by the presentation and demonstration, there were many questions round the table. These carried on even after the formal part of the meeting was over. One of the comments that really stuck in my mind was something that Lars Plougmann said. He reckoned (without having been able to test it) that the participation dynamic is different when social software comes inside the firewall.

The now-traditional assertion about wikis is that usage breaks down in three ways: 90% of people read but do not contribute; 9% contribute from time to time; and 1% participate heavily — accounting for most of the material. As far as I can find out, there is nothing to suggest conclusively that Lars’s view is accurate. (His hope is reflected by others, though.) But what are the consquences if the 90-9-1 rule does hold true for enterprise wikis?

If we construe it strictly, this usage profile should mean that no wiki can succeed if it serves less than 100 people (since a fraction of a person would be required otherwise). Some enterprise wikis might cover a much smaller group than this (such as a client-focused knowledge-sharing wiki where the client team is only 50 lawyers or so). However, if a single person were to support more than one wiki, their efforts could sustain 99 people overall. This leads me to the (I think inexorable) conclusion that we should focus our wiki efforts on areas where there are keen contributors rather than those where we could see a significant RoI, but no obvious wiki leaders. This appears a little counter-intuitive, and would need some nifty footwork to convince Ricky Revenue.

In all, then, a thought provoking morning and a welcome distraction. Many thanks to Penny and Lars!

Prescriptivity and appropriateness

One of the links in my blogroll is to Language Log, which is home to some of the most rigorous blogging on the internet. As its name indicates, it deals with language and linguistics, but in the broadest possible sense. So its authors have taken on sex differences and biological determinism, science journalism, lolcats, and legal language. However, one of the best posting categories is “Prescriptivist Poppycock.” When you need a break from pedants whingeing about split infinitives and dangling prepositions, this is where to come.

David Crystal’s book, The Fight for English (subtitled “How language pundits ate, shot, and left”) is also an attack on prescriptivist poppycock. In it, he describes how language pedantry developed during the eighteenth century, and outlines how an understanding of appropriate language can help people to understand grammar and language generally. (A point completely lost on this Amazon reviewer.) This is why appropriateness matters:

One of the aims of education, whether by parents or teachers, is to instil appropriate behaviour. If we behave inappropriately, we risk social sanctions. Language is a form of social behaviour, and it is subject to these sanctions as is everything else. The main aim of language education has thus to be the instilling into children of a sense of linguistic appropriateness — when to use one variety or style rather than another, and when to appreciate the way in which other people have used one variety or style rather than another. This is what the eighteenth-century prescriptive approach patently did not do.

When he turns to the history of grammar teaching in the UK, Crystal’s reduces his argument to a simple analogy. (Until the mid-1960s, English language teaching in the UK depended heavily on prescriptive texts. After that point, virtually no grammar was taught as part of the school syllabus. From the 1990s, following a period of intense academic study of English language and grammar, the National Curriculum for English incorporated language teaching that (a) balanced the study of language structure and the study of language use, and (b) aimed to instil a sense of language awareness in children.) The balance is important:

The basic problem [with historic English teaching] was that there was no means of relating the analytical skills involved in doing grammar to the practical skills involved in speaking, listening, reading, and writing. The grammarians argued that there just had to be a connection — that any child who learned to parse would inevitably end up being a better user of its language. But there was nothing at all inevitable about it. And there was an obvious counter-argument, best summed up in an analogy. I have a friend who is a wonderful car mechanic, but he is a terrible driver.

The analogy is worth developing. To be a good driver takes a lot more than knowledge of how a car engine works. All kinds of fresh sensitivities and awarenesses are involved. Indeed, most of us learned to drive with next to no understanding of what goes on inside the bonnet. It is the same with language. …[S]omething else has to happen if children are to use a knowledge of grammar in order to become better speakers, listeners, readers, or writers. A connection has to be made — and, more to the point, demonstrated.

Reading this passage, I was reminded of something else I read today. In the Anecdote blog, Shawn Callahan quotes a passage from John Medina’s book, Brain Rules. Here are the first couple of sentences:

Any learning environment that deals with only the database instincts [our ability to memorise things] or only the improvisatory instincts [our ability to imagine things] ignores one half of our ability. It is doomed to fail.

I had intended to write about this anyway, because it struck me that an approach to legal education (and, by extension, KM) that focuses on things like transaction processes and prescribed documents (held in databases) does not help to develop the creative and improvisatory instinct in lawyers. I have a feeling that many lawyers find improvisation difficult (please excuse the generalisation), and so they are happiest with KM that creates know-how databases and precedent banks. Such an approach does not actually serve them as well as they think it does.

As for the legal education point: a story from my wife. She is a corporate partner, with 20 years experience. A couple of years ago she was leading a very complex transaction, but the other side was represented by a much more inexperienced lawyer. More significantly, it was clear that this lawyer had been taught some standard transaction processes and had not developed enough imagination to see that the clients’ goals could be more readily met by diverging from the standard. Because of this, my wife and both sets of clients were frustrated until the other lawyer finally gave up on her approach and caved in. At this point, I am not privy to the details, but my guess is that the result of this change of heart was not particularly beneficial her client. At the very least, her intransigence will have prolonged the deal and increased its cost to both parties.

Prescriptivism may be dying out in the British educational system, but it is alive and well in law firms. In the current climate, how long will clients stand for it? And what are we doing to connect lawyers’ database instincts with their improvisory instincts in order to give them the understanding to become better advisors?

The new Glossators

Today I stumbled across Paul Maharg’s account of last April’s KM Legal conference (Day 1 | Day 2). I was glad I did: having helped the conference organiser to design the programme, I was very cross that I couldn’t get to it because of clashing commitments. In particular, I had wanted to see Paul again (one of my last commitments as an academic was to share a platform with him), as well as hearing Dave Snowden. Paul’s account of the conference was very good — not just a summary of the presentations, but a useful critique as well.

Paul’s own presentation, “The Future of KM” is available on Slideshare (as adapted for a subsequent occasion).

Like all good visions of the future, Paul’s is rooted in history. In particular, he links the current practice of KM in law firms (and more generally) with the mediæval glossators whose views on the basic legal texts effectively developed the law itself.

Browsing through the slides, I was reminded of two related tools that were first developed over ten years ago: CritLink and Harvard Law School’s Annotation Engine. These were designed to overlay external web pages published by others with locally-created annotations. They never really took off. I remember trying to get both of them to work, but my limited Perl skills weren’t up to it (and the fact that I was using a Windows server probably didn’t help). However, this is still a key area where Web 2.0 doesn’t quite hit the mark.

As slide 14 of Paul’s presentation says, blogs can be seen as glossed commentary, and wikis as glossae, but the problem with both of them is that they are usually remote from the material that they refer to. If one could read legislation or cases with a gloss attached, surely their usefulness would be improved? Perhaps this is something that someone could take on now that the UK’s government information is being opened up

In the meantime, I suspect that we will stick to guidance notes and know-how documents that refer selectively to legislation and cases, without being able to put them in a wider context. Paul suggests that legal knowledge managers might be Glossators, but I suspect that in fact we are Commentators.

The Commentators went beyond the glossators, who had had treated each text separately. The commentators instead wrote prose commentaries on the texts (rather like lectures,) working through, book by book, through the Digest.

I think there is merit in both approaches, but technology currently favours commentating.

Getting better through practice

Law firms, perhaps professional service firms in general, attribute significance to experience. As David Maister puts it, “clients can look for experience, expertise or efficiency.” Real expertise (as in “this is the person who defines this area of practice”) is hard to come by; few firms can expect to have an excess of experts. Efficiency requires a particular set of skills, and some firms have made a real difference in that area of work. The gaining of experience is often treated as something more straightforward: something that comes with time and practice. Are clients right to rely on grey hair as an indication of good lawyering? Recent research suggests that experience is not all that is required to produce high-quality work.

An article in Time illustrates the finding vividly in a description of emergency care by a novice nurse and by a nurse with 25 years experience. Both managed to kill the (fortunately simulated) patient. In fact, the more experienced nurse did it more quickly. The reason was that something unexpected happened. Neither nurse dealt with it well. The trainee because he didn’t know what to do, the veteran because she had settled into a pattern of work that made it difficult to change to deal with the new event.

The Time article refers to the work of Anders Ericsson, who claims that “the number of years of experience in a domain is a poor predictor of attained performance.” He is described as the world’s leading expert on experts. So how do we cope with the unpredictable?

Ericsson’s primary finding is that rather than mere experience or even raw talent, it is dedicated, slogging, generally solitary exertion — repeatedly practicing the most difficult physical tasks for an athlete, repeatedly performing new and highly intricate computations for a mathematician — that leads to first-rate performance. And it should never get easier; if it does, you are coasting, not improving. Ericsson calls this exertion “deliberate practice,” by which he means the kind of practice we hate, the kind that leads to failure and hair-pulling and fist-pounding.

Without deliberate practice, experience can lead to us performing tasks unconsciously (like the nurse in the example, or an experienced driver who drives on ‘auto-pilot’ and is easily distracted into thinking about other activities), and to over-confidence.

Ericsson is partly responsible for the Cambridge Handbook of Expertise and Expert Performance, which brings together a spread of scientific insight in this area. The Handbook indicates that, in addition to deliberate practice, great performance also comes from regularly obtaining accurate feedback.

In a 1997 study published in the journal Medical Decision Making, researchers found that only 4% of interns had known a group of elderly patients for more than a week; by comparison, nearly half the highly experienced attending physicians had known the patients for more than six months. But even with the advantages of years of medical experience and months of knowing the patients, the attending physicians were no more accurate than the interns at predicting the patients’ end-of-life preferences, a crucial factor in determining whether a patient has a good death. It was attention to the patients’ feelings and values that mattered, not having more knowledge of their diseases.

In fact, the Time article is not the best summary of deliberate practice. I found that this was better:

  1. Focus on technique as opposed to outcome.
  2. Set specific goals.
  3. Get good, prompt feedback, and use it.

The need to focus on technique is also evident in a blog posting looking at the phenomenon of ‘choking’ (colloquially applied to athletes whose performance deteriorates under stress). It refers to research into the psychology of choking under pressure using Australian golfers as subjects.

Rather than think about the mechanical details of their swing, golfers should focus on general aspects of their intended movement, or what psychologists call a “holistic cue word”. For instance, instead of contemplating things like the precise position of the wrist or elbow, they should focus on descriptive adjectives like “smooth” or “balanced”. An experimental trial demonstrated that professional golfers who used these “holistic cues” did far better than golfers who consciously tried to control their stroke. The researchers conclude that expert performers should “adopt more global, higher-level cue words that collectively combine the mechanical process of their technique, which may act as either a schematic cue or a conscious distraction.”

I think this idea links to my post yesterday. The holistic cue words are like the space between the trees. What should these words be for lawyers? I think that depends on the individual (what general aspects of your work need enhancing?), the practice area (a transactional lawyer may need a different focus than a litigator), the firm (all of this needs to reflect the culture of the firm, in order to be believable), and most importantly the client. In essence, then, the advice would be that rather than thinking about the detail of the drafting that they are doing, for example, a lawyer should focus on this more general objective.

There is another piece to this — how do busy professionals (especially those with time-related targets) find the time to do this deliberate practice? And what would it look like? I think the answer may be to build it into the normal work pattern. This would mean that lawyers should set (and communicate) goals (based on technique, not outcome) and seek feedback on those goals. How often do people ask clients, “how did that feel for you?”

How we see it

Charles Arthur comments on the journalism vs new media debate, and in doing so explains his one rule for writing a blog post.

The rule is this: when I write the post, I know more about that particular topic than the average person who’s going to read it. But I don’t know more about the particular topic than some of the people reading it – so if I can get them to contribute then everyone (me and the other readers) will have benefited. (And of course if I don’t know more, or suspect I don’t know more, than the average reader, I should go away and find out some more until I do.)

Journalists are not especially different in this respect from lawyers. Sometimes we may have clients who know more about the law in question than their advisors. Only a handful of people (out of a population of thousands) get to be the undisputed experts in their fields. The rest of us have to hope that we know enough to be helpful to the client and to allow the possibility that the client might help us. Charles has a view on this too.

The trick is in writing it in a way that will get those people who do know more to contribute it. That’s tricky. Takes practise. Maybe that’s what the new journalism is about: writing in a way that raises the amount of knowledge in the average reader’s head, while encouraging the reader further up the bell curve of knowledge to pitch in too.

Those of us who are interested in opening up knowledge sharing within law fims (or anywhere, I suspect) can learn from this. The best examples of knowledge sharing arise when people who know a little feel empowered enough to communicate what they know and confident enough to accept correction or clarification from those who know — and all this can occur in an open environment so that those on the sidelines also learn. That is why carefully managed Web2.0 technologies inside the firewall can offer real KM benefits — they show how knowledge flows around the business.

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