Archive for the 'Learning' Category

Some thoughts on legal education and practice

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

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.

Walking into knowledge

Until this weekend, I didn’t know of Rory Stewart. Now that I do, I am not sure whether to admire him or not. His political alignment and social background are poles apart from mine. His lifetime of achievement (at the tender age of 37) makes me jealous. But I love the way he works.

Mellor ChurchStewart is, at the time of writing, Conservative prospective Parliamentary candidate for Penrith and the Border. However, at least one commentator believes that he has a more significant political future ahead of him.

You heard it here first – Rory Stewart will become prime minister of Great Britain.

I think this is a long shot. However, Stewart’s record so far  suggests that it is not impossible.

After a privileged upbringing (Dragon School, Eton and Balliol), he served briefly as an officer in the Black Watch, joined the Foreign Office, and in 2003 was appointed Deputy Governor of an Iraqi province by the Coalition Provisional Authority. By the age of 31, he had been appointed OBE for his work in Iraq. In 2004, he became a Fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School. In 2006 he was appointed by Prince Charles to run the Turquoise Mountain Foundation — an organisation working on the regeneration of an area of the Afghan capital Kabul. Most recently, he was appointed Ryan Family Professor of the Practice of Human Rights and Director of the Carr Center for Human Rights Policy.

So far Rory Stewart looks like a typical member of the new Establishment. But buried in this list of achievements is a rather unusual preference for personal learning. Rory Stewart walks. Between 2000 and 2002 he walked a total of 6000 miles through Iran, Pakistan, India and into Nepal, and then back across Afghanistan. In the process he emulated his boyhood hero, T.E. Lawrence, living with and learning from the people whose land he traversed. As a consequence, he has a view of our involvement in Afghanistan that is somewhat at odds with the political establishment. Writing in The New York Review of Books, Stewart suggests that President Obama needs to reduce rather than increase troop numbers.

A more realistic, affordable, and therefore sustainable presence would not make Afghanistan stable or predictable. It would be merely a small if necessary part of an Afghan political strategy. The US and its allies would only moderate, influence, and fund a strategy shaped and led by Afghans themselves. The aim would be to knit together different Afghan interests and allegiances sensitively enough to avoid alienating independent local groups, consistently enough to regain their trust, and robustly enough to restore the security and justice that Afghans demand and deserve from a national government.

What would this look like in practice? Probably a mess. It might involve a tricky coalition of people we refer to, respectively, as Islamists, progressive civil society, terrorists, warlords, learned technocrats, and village chiefs. Under a notionally democratic constitutional structure, it could be a rickety experiment with systems that might, like Afghanistan’s neighbors, include strong elements of religious or military rule. There is no way to predict what the Taliban might become or what authority a national government in Kabul could regain. Civil war would remain a possibility. But an intelligent, long-term, and tolerant partnership with the United States could reduce the likelihood of civil war and increase the likelihood of a political settlement. This is hardly the stuff of sound bites and political slogans. But it would be better for everyone than boom and bust, surge and flight. With the right patient leadership, a political strategy could leave Afghanistan in twenty years’ time more prosperous, stable, and humane than it is today. That would be excellent for Afghans and good for the world.

He made a similar argument in the London Review of Books.

After seven years of refinement, the policy seems so buoyed by illusions, caulked in ambiguous language and encrusted with moral claims, analogies and political theories that it can seem futile to present an alternative. It is particularly difficult to argue not for a total withdrawal but for a more cautious approach. The best Afghan policy would be to reduce the number of foreign troops from the current level of 90,000 to far fewer – perhaps 20,000. In that case, two distinct objectives would remain for the international community: development and counter-terrorism. Neither would amount to the building of an Afghan state. If the West believed it essential to exclude al-Qaida from Afghanistan, then they could do it with special forces. (They have done it successfully since 2001 and could continue indefinitely, though the result has only been to move bin Laden across the border.) At the same time the West should provide generous development assistance – not only to keep consent for the counter-terrorism operations, but as an end in itself.

A reduction in troop numbers and a turn away from state-building should not mean total withdrawal: good projects could continue to be undertaken in electricity, water, irrigation, health, education, agriculture, rural development and in other areas favoured by development agencies. We should not control and cannot predict the future of Afghanistan. It may in the future become more violent, or find a decentralised equilibrium or a new national unity, but if its communities continue to want to work with us, we can, over 30 years, encourage the more positive trends in Afghan society and help to contain the more negative.

Stewart’s perspective, which does not fit any simplistic model — whether pro or anti involvement in Afghanistan, is not the kind that arises from traditional learning processes. As such, it feels more like the kind of sensemaking approach suggested by the Cynefin framework as a response to complex scenarios. He is using a similar approach to find out more about the constituency he will seek to represent in the next Parliament. Walking around the largest and most sparsely populated constituency in England is, for him, the best way to make sense of what is going on.

Walking has given me more than I hoped: living in Cumbrian homes and experiencing the great distances between communities. It allows me to learn from a hundred people I might never have encountered by car. But it has not provided neat solutions. It is easy to see they should have listened to the gritter driver about his truck — but I’ve found out that the government has spent three times as much on upgrading a mile-long footpath as on the entire affordable housing for the district. This is not just about an individual’s decisions, it is about budget lines and regulation insurance and a whole way of looking at the world. I realise that to change government needs not just cutting regulations or giving parishes control of money, but also shifting an entire public culture over decades.

It will be interesting to see how well this works for Rory Stewart, and whether it really makes him fit for high office. There is a real possibility that his very different approach to knowledge and learning might make it hard for him to be accepted within the traditional systems of British government and politics.

Whatever comes to pass for Rory Stewart, I think there is a wider point for knowledge and learning within organisations. Getting out into the organisational community and listening to people’s stories, worries, concerns, interests, views is likely to have more of an impact than reading case-studies, theories, position papers or the like. I read something else today that makes a similar point. That’s another blog post.

Learning from failure or success

In a round up following KM Australia, back in August, Shawn Callahan has challenged the notion that we learn best from failure. I think he has a point — the important thing is learning, not failure.

Harris Hawk missing the quarry

Here’s Shawn’s critique.

During the conference I heard a some speakers recount the meme, “we learn best from failure.” I’m not sure this is entirely true. Anecdotally I remember distantly when I read about the Ritz Carlton approach to conveying values using stories and I’m now delivering a similar approach to a client on the topic of innovation. Here I’ve learned from a good practice. As Bob Dickman once told me, “you remember what you feel.” I can imagine memory being a key first step to learning. And some research shows it’s more complex than just learning from failure. Take this example. The researchers take two groups who have never done ten pin bowling and get them bowling for a couple of hours. Then one group is taken aside and coached on what they were doing wrong and how they could improve. The other group merely watches an edited video of what they were doing right. The second group did better than the first. However there was no difference with experienced groups.

I wish I could access the linked study — Shawn’s summary and the abstract sound very interesting. Here’s the abstract.

On the basis of laboratory research on self-regulation, it was hypothesized that positive self-monitoring, more than negative self-monitoring or comparison and control procedures, would improve the bowling averages of unskilled league bowlers (N =60). Conversely, negative self-monitoring was expected to produce the best outcome for relatively skillful league bowlers (N =67). In partial support of these hypotheses, positive self-monitors significantly improved their bowling averages from the 90-game baseline to the 9- to 15-game postintervention assessment (X improvement = 11 pins) more than all other groups of low-skilled bowlers; higher skilled bowlers’ groups did not change differentially. In conjunction with other findings in cognitive behavior therapy and sports psychology, the implications of these results for delineating the circumstances under which positive self-monitoring facilitates self-regulation are discussed.

Based on these summaries, I would draw a slightly different conclusion from Shawn’s. I think there is a difference between learning as a novice and learning when experienced. Similarly, the things that we learn range from the simple to the complex. (Has anyone applied the Cynefin framework to learning processes? My instinct suggests that learning must run out when we get to the chaotic or disordered domains. I think we can only learn when there is a possibility of repeatability, which is clearly the case in the simple and complicated domains, and may be a factor in moving situations from the complex to one of the other domains.)

The example Dave Snowden gives of learning from failure is actually a distinction between learning from being told and learning by experience.

Tolerated failure imprints learning better than success. When my young son burnt his finger on a match he learnt more about the dangers of fire than any amount of parental instruction cold provide. All human cultures have developed forms that allow stories of failure to spread without attribution of blame. Avoidance of failure has greater evolutionary advantage than imitation of success. It follows that attempting to impose best practice systems is flying in the face of over a hundred thousand years of evolution that says it is a bad thing.

In the burned finder scenario, success (not touching a burning match) is equivalent to lack of experience. Clearly learning from a lack of experience will be less effective than learning from (even a painful) experience. By contrast, the bowling example provides people with a new experience (bowling) and then gives them an opportunity to contemplate their performance (which was almost certainly poor). However, whatever the state of their performance, it is clear what the object of the activity is and therefore ‘success’ can be easily defined — ensure that this heavy ball leaves your hand in such a way that it knocks down as many pins as possible by the time it reaches the far end of the lane. As the natural tendency of learners at early stages in the learning process is to concentrate on the negative aspects of their performance (I can’t throw the ball hard enough to get to the end of the lane, or it keeps going in the gutter), it is understandable that a learning strategy which focuses on success could have better results than one that merely explains why the bad things happen.

In the bowling experiment, no difference was found between the negative and positive approaches when experienced bowlers were studied. All this suggests to me is that we need more work in this area, especially considering learning in the complicated or complex domains. Even for experienced bowlers, the set of variables that affect the passage of a bowling ball from one end of the lane to the other is a predictable one. There is not just one cause and effect, but the laws of physics dictate that the relationships between all the causes should have predictable outcomes. By contrast, much of what interests us with regard to knowledge and learning in organisational environments does not depend on simple causal relationships.

In those complicated or complex organisational situations, I think we can learn more from our own failures than other people’s successes (which I think is the point that Dave Snowden is making). I think Shawn is also right to suggest that we can learn from our own successes too. However, that can only be the case if we take the time to analyse exactly what was the cause of the success. So we need a commitment to learning (which brings us back to deliberate practice, amongst other things) and we need the insight into our actions and activities that allows us to analyse them effectively. I think the will to learn is often present, but insight is often missing when we consider successful initiatives, possibly because the greater distance between cause and effect means that we cannot be confident that success is a product of any given cause. On the other hand, it is usually easier to identify causes of failure, and the process of failure also provides an incentive to work out what went wrong.

As for the quality of the lessons learned from failure or success, I am doubtful that any firm conclusion could be drawn that as a general rule we learn better from failure or from success. However, as we become more experienced and when we deal with fewer simple situations, we will inevitably learn more from failure than success — we will have more experience of failure than success, and other people’s successes are of limited or no value. So, although we can learn from our successes, my guess is that more of our learning flows from failure.

It feels like there is more research to do into these questions.

Learning from experience?

I find it useful to keep an eye on developments in our universities. Two reasons: our future lawyers are seeing and using teaching and learning techniques that they might expect to find replicated in the firms they join as trainees; and just knowing what is going on elsewhere can give us insights into new possibilities.

Winery

With that in mind, I was interested (in catching up with Paul Maharg’s blog)to see that he has been developing his work on professional legal education at the Glasgow Graduate School of Law.

Over a period of years Paul and his colleagues have developed an online simulation-based learning system to support professional education at the GGSL. This requires students to engage with realistic legal problems at to solve them individually and collaboratively, through “transactional learning.” This requires, in Paul’s words:

  • active learning
  • through performance in authentic transactions
  • involving reflection in & on learning,
  • deep collaborative learning, and
  • holistic or process learning,
  • with relevant professional assessment
  • that includes ethical standards

The presentation from which this is taken (embedded below) provides a tangible overview of the system, and there is a more detailed paper to go with it, as well as the site itself.

Having read all of this, I was particularly struck by one of the concluding slides (slide 41) in the presentation, which is headed “there’s no such thing as experiential learning.” Citing Schratz and Walker, Research as Social Change: New Opportunities for Qualitative Research, Paul claims the following:

  • We don’t learn from experience
  • We learn by working to interpret experience, given that, when learning:
    • we have different prior knowledge
    • our aims are always different in subtle ways
    • we learn different things from the same resources
    • ‘resources’ means symbolic objects like books & web pages, but also people, including ourselves
    • we can learn intimately and deeply from any resource, given a suitable context
  • Teachers and students need to encode those interpretations as complex memories, habits, skills, attitudes or knowledge objects if they are to re-use them

 That first bullet point is a real challenge to the attitude of many practising lawyers. “Learning on the job” is a classic response to the question, “How do you maintain your knowledge of law and practice?” I am not sure that this approach typically includes “working to interpret experience.” Nor will it often include a formal opportunity for feedback and assessment (of the learning, not the work).

Turning to a recipe for the future, Paul suggests a move away from the current traditional model (in workplaces as well as educational institutions, although his focus is primarily on the latter) (slide 43):

Still focused on:

  • Organisations, ie LMSs, silos of knowledge
  • Products, ie handbooks, CDs, closely-guarded downloads
  • Content, ie modules, instruction, transmissive content
  • Snapshot assessment of taught substantive content

The replacement will require a rather different emphasis (slide 44):

Focus shifts to:

  • Organisation has weak boundaries, strong presence through resource-based, integrated learning networks, with open access (open courseware initiatives, etc)
  • Focus not on static content but on web-based, aggregated content
  • E-learning as integrated understanding & conversation, just-in-time learning
  • Assessment of situated learning

Coincidentally, I have just finished reading Made to Stick, by Chip and Dan Heath. It is a fascinating and accessible introduction to the art of communicating messages so that they really make a difference. Towards the end of the book, the Heaths look at the power of narrative and how it is linked to simulations. (I have been interested in this for a while, but have really caught the story-telling bug since attending a workshop led by Shawn Callahan last month.) It appears that good stories allow listeners to participate by picturing in their minds the sequence of events, the emotions, the situations and reactions, and so on. This process of imagining (or imaging) actually invokes the same areas of the brain as performing the actions or experiencing the emotions described. I have long been familiar with physical simulators that are used to train pilots and astronauts, but I hadn’t realised that mental simulation can be nearly as good at building skills. As the Heaths explain:

A review of thirty-five studies featuring 3,214 participants showed that mental practice alone — sitting quietly, without moving, and picturing yourself performing a task successfully from start to finish — improves performance significantly. The results were borne out over a number of tasks: Mental simulation helped people weld better and throw darts better. Trombonists improved their playing and figure skaters improved their skating. Not surprisingly, mental practice is more effective when a task involves more mental activity (e.g., trombone playing) as opposed to physical activity (e.g., balancing), but the magnitude of gains from mental practice is large on average: Overall, mental practice alone produced about two thirds of the benefits of actual physical practice.

For me, this also links to the theme of deliberative practice, which I have touched on a couple of times in the past, and which Shawn has also picked up on during his trip to the UK. In his second post, he responds to a comment on the first which suggests that we might not have time to be experts in a business context.

To put the effort in to be bloody good requires time and dedication. Consequently we need to pick our desired expertise carefully. Here are some things to consider:

  • do you love the skill that much that it doesn’t seem like work to you?
  • is it a skill you can use in any job?
  • will people value and recognise your expertise and therefore motivate your ongoing efforts?
  • can practice feel like play? If so then there is much more chance you will keep practising.

We will always need content experts. Your social network should help you connect to these valuable folk. What will also need are people who can thrive in complexity and the skills we’ll need to deliberately practice will include designing, leading, managing, innovating, storytelling, strategizing, implementing, sensemaking, and engaging (I’m sure you can think of others). These skills will be helpful in any job and so feel free to dedicate 10,000+ hours to any one of them and know you haven’t wasted your time.

The key, yet again, is to focus and prioritise. And visualise…

It’s just this thing, you know?

We are on our way towards a place where some of the technologies that currently astound us will be so commonplace as to be boring. This is a truism. It was true of the spinning mule in the 1780s, and it is true of Web 2.0 software today. The longer we are astounded, the less likely we are to prepare for this inevitability, and therefore the worse prepared we will be.

James Dellow makes this point in his blog post, “Time for an upgrade? Wiki 2.0” and Luis Suarez drives it home with a pointer to a really engaging video on the impact of these technologies on learning (and therefore on business).

One of the interesting people speaking in the video is Stephen Heppell, who has been an educational innovator in the UK for what seems like decades (I certainly first encountered him in the early 1990s).

Children are living now in a different space. They are living in what I call a “nearly now”. Nearly now is that space that they text in, the space that they update their Facebook entries in, the space that they twitter in, you know, the space that is not quite synchronous. It’s a really interesting space because it’s not adversarial, it’s not pressured. It’s a space where people can — it’s all the R-words — they can reflect, and retract, and research, and repeat. It’s a very gentle world. I tell you what: it’s a great world for learning. (1’14″-1’45″)

Now we’re looking at a whole different range of schools. We are looking at schools that produce ingenious, collaborative, gregarious and brave children who care about stuff — like their culture. To build schools that do that is a whole other challenge. And around the world, you know, people are testing out the ingredients of what makes that work. Those ingredients are being assembled into some just stunning recipes in different places. It’s a very exciting time for learning. It’s the death of education, but it’s the dawn of learning. That makes me very happy! (4’31″-5’00″)

This idea of the pervasive “nearly now” is implicit in James Dellow’s post, and some of the things he links to. One of those things is an article by by Matthew C. Clarke, “Control and Community: A Case Study of Enterprise Wiki Usage“. He concludes as follows:

I predict that Wikis will disappear over the next 5 to 10 years. This is not because they will fail but precisely because they will succeed. The best technologies disappear from view because they become so common-place that nobody notices them. Wiki-style functionality will become embedded within other software – within portals, web design tools, word processors, and content management systems. Our children may not learn the word “Wiki,” but they will be surprised when we tell them that there was a time when you couldn’t just edit a web page to build the content collaboratively.

As James Dellow puts it: the wiki will become more of a verb than a noun. This is the future that Stephen Heppell sees, and will come more quickly than the mechanisation of the textile industry. We need to be prepared for it, not by resisting it like the destroyers of the spinning mule, but by being open to the opportunities it offers. As Clarke puts it in his penultimate paragraph:

By putting minimal central control in place an enterprise can gain significant benefit from this simple technology, including improved knowledge capture, reduced time to build complex knowledge-based web sites, and increased collaboration. Although enterprise Wiki use requires a greater degree of centralized control than public Wikis, this need not impinge on the freedom to contribute that is the hallmark of a Wiki approach. The balance of power is different in an enterprise context, but fear of anarchy should not prohibit Wiki adoption.

James Dellow is not quite so starry-eyed, but his note of caution is not a Luddite one.

I’m not sure its good enough to add wiki-like page editing functionality to an information tool and expect it to behave like a social computing tool suddenly (if that’s your intent). I think what’s more interesting is the evolution of enterprise wikis, as they add other types of social computing features. Other social computing platforms may also threaten these wiki-based solutions by adding the capability to manage pages and documents.

The key thing here is that we need to blend our corporate demands with the opportunities that working and collaborating in the “nearly now” will bring. The result of that blend will inevitably mean that the technologies will develop in slightly different ways. Modern textile machinery is very different from Crompton’s mule, if only because a modern health and safety regime requires it. Similarly, the openness of some of our current social networking and collaboration tools will need to be toned down in a corporate environment, to allow for the right level of knowledge and information sharing consistent with regulatory and ethical compliance.

As we tread the path that will lead us towards that future, I agree with David Gurteen that it is our responsibility to engage with the new technologies to help work out what the future will look like. As David puts it in the introduction to his latest Knowledge Letter, “I am surprised at just how many people especially knowledge managers are not using social tools (not necessarily internally but on the web for personal use) and consequently do not really understand their power as knowledge sharing and informal learning tools.” It surprises me too. David drives home the link with learning.

…when I ask people why they do not do the same the answer is always “Oh I’d love to but I am too busy. I just do not have the time.” But I think in reality the truth is that in our busy lives we never have enough time to do all the things we would like to do. So we prioritise things and taking the time to learn tends to fall off the bottom of the list.

I think that many people are so busy they have got out of the habit of informal learning – maybe they never got into it. Its not seen as a priority. So can I make a suggestion – if you are one of those people who are not keeping up with your with new developments and thinking in your field of endeavour then take a few minutes to think about how important is it to you compared with everything else that you do. And if you decide it is important then commit to doing it.

As the video above makes clear, the world of learning is changing fast. Our world of work will change to follow it. We owe it to ourselves, our colleagues and our organisations not to sit back and wait for the changes to overwhelm us. The tide is coming in — swim out to meet it.

Rethinking sport and life

My monthly copy of The Word magazine arrived last weekend. As usual, it is full of interesting articles about music, film and books. This month, however, there is a bit of a sporting flavour. This is provided by an interview with Ed Smith, who has combined a glittering academic career with top-level professional cricket, including playing for England. The interview itself is in epigrammatic form, but a number of Smith’s comments rang true with me when considered in a business context. Here are some excerpts.

Beware Academies — You could take the Platonic or Aristotelian attitude to creating winning sportsmen. The Platonic one is that you have an academy and you tell them how to do it. The Aristotelian one is, let them find out by trial and error what works and what doesn’t. … Sometimes I think that rebranding something as an academy gives it some legitimacy. It gives it none. Too often you get enshrined versions of mediocrity or systematised blandness.

When we think how people learn in organisations, we are often torn between Plato and Aristotle: between the training curriculum and learning on the job. I don’t think Smith’s point is that we should turn our backs on the Academy and embrace enlightened amateurism exclusively, but that we need to think carefully about the outcomes of different types of learning experiences. We also need to consider whether the people in the Academy are actually the right ones.

You have to trick your conscious mind — Bob Dylan said creativity is not a freight train on the tracks. It’s not something you can control. The best thing you can do is not get in the way. Most creative people have a cooperative subconscious. They keep their subconscious and rational minds aligned. The problem is, professionalism wants to understand how that works. You get some young player who’s very inconsistent and try  to make him consistent. …[Y]ou take somebody who is intermittently brilliant and you make them never brilliant.

This is a really perceptive comment about how we nurture brilliance of any kind. Often the hothousing of talent actually flattens it. Just like plants, people become more vigorous when they are subjected to the buffeting of their natural environment. When we take them out of that environment, and isolate them from the wind and rain (in the case of plants) or failure and feedback (in the case of people), we make them weaker rather than stronger. In the end, Smith is probably right that individuals are probably better off managing their own creativity and brilliance. When organisations get involved, they run a real risk of losing the brilliance along with the mystery.

It’s not about passion — Anyone can go around beating their chest; it’s winning that’s so damn hard. … I don’t pay good money to watch a conductor stamp his feet. I pay to listen to good music. The choreographer George Balanchine once said that the more he wanted passion, the more he found himself having to talk about precise, very technical things.

This last sentence is a real gem. So often we see so-called ‘gurus’ or leaders talking about the need for passion, but with very little behind it. Balanchine’s remark is much more useful. People cannot deliver with passion and flair (for the benefit of their clients, the firm or themselves) if they go not have a perfect grasp of the technical details. Some of them will never be able to show that passion anyway, but even so they would still have deep technical competence. That has a value in itself. Passion without command of the detail is worthless.

Unfortunately, the interview is not online, so if you want more you’ll have to buy the magazine. Alternatively, Smith’s recent book, What Sport Tells Us About Life, apparently covers similar ground.

Where do lawyers come from…?

From a number of directions, there is a lot of son et lumière at the moment about the relationships between legal education and law firms and law firms and their in-house clients. As someone who has sat on two of the three sides of these fences, I naturally have a view.

Before I started working in a law firm eight years ago, I spent nearly 13 years teaching law — for the greater part of that time at the University of Bristol. During that period there was considerable debate (fostered for the most part by the late Peter Birks) about the proper relationship between the legal academy and the profession (I speak of a singular profession, although there are actually two in England and Wales — solicitors and barristers). Birks was adamant that the legal profession should prefer law graduates to non-law graduates, but that the profession should leave the question of defining a suitable law degree to the universities. I thought he was wrong about the former question, but right about the latter. My view has not changed in the years I have spent since then observing lawyers at work.

As a law teacher, I saw many students who had clearly signed up for a law degree solely for the purpose of smoothing their progress towards a lucrative career in a commercial law firm. Some of them really resented the subjects that they were required to complete in order to get a qualifying degree, but which they saw as irrelevant to legal practice. Since I taught two of those subjects (Public Law and Jurisprudence), this resentment was plainer to me than it might have been to some of my colleagues. (Since then, many of my former students have said that in retrospect they value the wider perspective on the law that those courses gave them.)

At the same time, I knew many young lawyers who had studied law, but who spent much of their time wishing they had been able to read further into subjects that interested them more, whether that be History, Physics, or Underwater Basket Weaving. That made me wonder whether the right approach would be to turn Law into a postgraduate degree. (In the Anglo-Scottish tradition, Law is an undergraduate degree, with a postgraduate professional component for those intending to go into practice.) I do not now think that would be right — such an approach would effectively exclude from legal studies those with a genuine interest in law as a human and social science, but who had no intention of becoming joining the profession.

The natural conclusion of these views is that the legal profession should be open to those with law and non-law undergraduate degrees. That is the position in England and Wales today, as it has been since the profession became closed to non-graduates. Certainly, non-law graduates should be required to take a postgraduate course in law, but I do not think they should be excluded altogether. My observations of lawyers in practice has not changed this conclusion — without knowing someone’s academic history, I have found it impossible to tell whether or not they have a law degree. That does not prevent those with law degrees being convinced that they have a right to priority entry into the legal profession, as some of the comments on this report in The Lawyer illustrate.

One of the reasons why a law degree is not an essential prerequisite to a legal career in the England and Wales is that the vocational training of lawyers takes place entirely after the degree is obtained. I have been intrigued by the discussion of the value of a JD in business and the subsequent discussion between Ron Friedmann and Doug Cornelius, captured on Ron’s blog. Historically, only 70% or less of English law graduates enter the legal profession (I wish I had a citation for this, but I haven’t been able to track one down — it was certainly my recollection of Bristol graduates). In some other European countries, where Law is also an undergraduate degree, the proportion is even lower. In Italy, for example, there is a long-standing tradition (exemplified by Gianni Agnelli — nicknamed “l’Avvocato”) of law graduates going directly into commerce and business. Ron and Doug’s discussion makes it clear that European assumptions about the merits of legal study are not shared by our North American counterparts.

And what of that vocational training? Toby Brown has argued powerfully that BigLaw contributes significantly to the development of lawyers who can then turn their back on those firms and strike out on their own. This argument is even stronger in England and Wales. Once our fledgling lawyers leave the classroom and the lecture hall, they still need two more years (in the case of solicitors) before they can call themselves qualified. That two years on a training contract is typically spent in medium-sized to large law firms. (A search on LawCareers.Net suggests 180 firms in that category, which will typically have 5-100 places on offer each year. In addition, another 750 small firms are listed, but most of these will have less than two places on offer.) The solicitors’ profession therefore depends heavily on large commercial firms to train their new blood.

Which brings me to clients. My guess is that all clients of all law firms everywhere are pressing for lower fees (or at least reduced legal costs). If those fees are considered to be solely reimbursement for services rendered, law firms run the risk of short-changing themselves: of failing to be recognised for the wider benefit that they offer to the legal profession — especially its future. Many in-house legal teams in commerce, industry and the public sector add to the pool of qualified lawyers by offering training contracts. However, their contribution is small compared to the training work that law firms do, and to the numbers of qualified lawyers employed in those teams. My guess is that there is a net flow of qualified lawyers from private practice into in-house teams. The problem for those businesses is that their short-term cash-flow concerns might cause a shortfall in the pool of available talent in the longer term by making it more difficult for the firms to offer as many training contracts as the market will need in the future.

At the beginning of the year, I read a powerfully-argued polemic comparing major law firms to a dysfunctional coffee-shop.

Then I notice a coffeehouse that I had never seen before. It’s surprising because it’s bigger than normal and has a very staid, conservative name. More like a string of names, actually, followed by a “P.C.” I take this to mean “professional coffeehouse,” or something.

The first thing I notice inside is that the décor is heavy on the mahogany and expensive modern art. A sign on the wall talks about how they have stores in 30 states and eight countries, and that they just opened a location in Shanghai. The sign suggests that they’re very excited about this.

I go to the counter and I’m greeted by a tired-looking twentysomething. Her nametag says she’s a “Coffee Associate.”

When I’m all but delirious from my lack of caffeine, my barista finally tells me that my latte is ready. It seems well made, and it tastes fine, although I would have preferred to have it more quickly. The young woman thanks me and wishes me a good day.

“But I haven’t paid you yet.”

“Oh, don’t worry,” she says. “We’ll send you an invoice.”

Nearly two months later, I receive an envelope with the name of the coffee company on it. By now, I’ve already forgotten what I had gotten. I open the envelope and nearly faint.

And so on.

In fact, I don’t think major law firms are coffee shops. They are more like the motor dealer servicing departments. When one buys one’s luxury car new or nearly new, the need to maintain its resale value as far as possible means that one tends to go to the most expensive (but hopefully most up-to-date) place for regular servicing and repairs — the franchised dealer or service outlet. As the car gets older, and knowledge of the technology in it is more pervasive, it makes more sense to save money by finding a local mechanic who can work on it. But the local mechanic can only do that if he can tap into the expertise coming out of the main dealership. He and, by extension, you the customer depend on that expertise. You have paid for it in the past by using the main dealer, and now you can reap the reward by using a cheaper alternative. This analogy is still not perfect, but it is not as pernicious as the coffee shop one. Making coffee is not as complex as maintaining a modern car, which is nowhere near as tricky as training a lawyer.

People-whispering

Dave Snowden has reminded us that the English word “manage” is derived from manège (French: “the handling or training of a horse…”) and, ultimately, maneggiare: (Italian: “to handle”). The ways in which we work with those around us can be compared with different approaches to equine training.

Horses are, by nature, herd animals. Despite their suitability for the roles we have historically imposed on them — beasts of burden, carriage or draft — they do not take to those roles naturally or, sometimes, easily. They need to be accustomed to the harness, to the weight of a rider or pack, and to following instructions given by weight, pressure, whip, heel, hand or stick. That process of accustomisation is traditionally known as horse breaking. 

Horse breaking can be a process by which the animal’s spirit is literally broken: it is driven to submission to the human’s need for a servant animal by being worn down and forced to comply. An alternative approach, exemplified by Monty Roberts’s techniques, is to work with the horse’s herd instincts. This effectively encourages the horse to think itself as part of the human’s herd. It can produce incredible results — trust, willingness, and human-equine communication.

I was reminded of this by Jack Vinson’s blogpost, “Messing the managers,” which concludes:

Management needs to “get out of the way,” but there is still plenty of facilitation and direction to be provided.  Having a completely open field can be just as problematic as attempting to put everyone on the same single-track path.

I think one key to effective facilitation and direction is to approach management in a similar way to horse breaking. A forceful approach is just going to rub people up the wrong way in the end, but if you find ways to work with people’s natural instincts it is more likely that everyone will trust you to find the right direction for the herd.

A key feature of the Monty Roberts approach is that the horse is encouraged to see the human as a fellow member of the herd. Traditional horse breaking depends on a relationship of inequality — the human and the horse occupy different places in the “system” — there is no herd. Jay Cross takes a similar view in his critique of the traditional approach to organisational learning.

In a knowledge society, learning is the work, and the work is learning. There is no separate reality in a classroom outside of the workplace. It’s time for less push and more pull, less topdown and more bottom-up, less going through the motions and more creating.

Being told to take a training course is like driving on a road with signs, stripes and bumps. If workers take a training course but don’t learn, what’s their reaction “The training wasn’t any good.”

Cross’s article compares this approach to learning with the work of the late Hans Monderman in the field of traffic engineering. Monderman’s basic rule was that streets are shared space for the use of all — pedestrians, cyclists, cars, lorries, old and young — all equally. The Wired article illustrates the result brilliantly.

Riding in his green Saab, we glide into Drachten, a 17th-century village that has grown into a bustling town of more than 40,000. We pass by the performing arts center, and suddenly, there it is: the Intersection. It’s the confluence of two busy two-lane roads that handle 20,000 cars a day, plus thousands of bicyclists and pedestrians. Several years ago, Monderman ripped out all the traditional instruments used by traffic engineers to influence driver behavior – traffic lights, road markings, and some pedestrian crossings – and in their place created a roundabout, or traffic circle. The circle is remarkable for what it doesn’t contain: signs or signals telling drivers how fast to go, who has the right-of-way, or how to behave. There are no lane markers or curbs separating street and sidewalk, so it’s unclear exactly where the car zone ends and the pedestrian zone begins. To an approaching driver, the intersection is utterly ambiguous – and that’s the point.

Monderman and I stand in silence by the side of the road a few minutes, watching the stream of motorists, cyclists, and pedestrians make their way through the circle, a giant concrete mixing bowl of transport. Somehow it all works. The drivers slow to gauge the intentions of crossing bicyclists and walkers. Negotiations over right-of-way are made through fleeting eye contact. Remarkably, traffic moves smoothly around the circle with hardly a brake screeching, horn honking, or obscene gesture. “I love it!” Monderman says at last. “Pedestrians and cyclists used to avoid this place, but now, as you see, the cars look out for the cyclists, the cyclists look out for the pedestrians, and everyone looks out for each other. You can’t expect traffic signs and street markings to encourage that sort of behavior. You have to build it into the design of the road.”

There is a trend here — the equestrian world is turning its back on the more barbaric approaches to horse-training; traffic engineering is starting to recognise that a less controlling, more equal, approach to road use reaps real rewards in terms of accidents and injuries; organisational learning is starting to take notice of the need to treat people as adults — able to control their own learning experience. As Lee Bryant noted in his short presentation this week at Lift09, the need for control was an aberration of the 20th century, and led to the most appalling consequences. We need to use all the means at our disposal to reverse the trend and return to a more natural approach — based on basic human instincts like trust and empathy.

Personal KM

Confession time: I think there is a link between improvements in personal productivity or effectiveness and increased organisational performance. (Where the organisation may be as small as a team or as large as a firm.) However, I am happy to admit that I know of no real evidence for this assertion: it is a bold statement to make without qualification. I am sure there are many examples where personal endeavours have not led to improvements in the business — because other factors have intervened, or because the individuals’ activities were poorly focused.

That said, I would be surprised if Doug Cornelius doesn’t turn out to be a real asset to Beacon Capital Partners because of his personal knowledge management practices. As Doug explains in his old blog, he has been using a blog as a learning platform in his new role as Chief Compliance Officer, and he has just opened it up to wider viewing.

It was an interesting experience using a blog as a learning tool. The blog was a very convenient way to link to relevant articles, cases, statutes and regulations that play a role in my job.

If I were in law school now, I would use a blog to keep my notes. The blog platform is just a great way to keep information organized and retrievable. The blog posts are arranged in chronological order, making them easy to find based on date. I use the categories to keep the posts organized by topic. I use the tags to organize the posts around sub-topic, author and publication. Pages provide an overview, with easy editing.

I currently have no interest in compliance and business ethics, but if I did Doug’s notes would be an incredible resource. In the period since late September, when he took on the new role, Doug has posted over 360 items to the blog.

If anyone needs an example to demonstrate how effective blogging can be for knowledge and learning, I think Doug’s new blog is perfect.

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