Category: Change

Knowledge management as a generative practice?

Mark Gould2 Comments

A serendipitous tweet today brought me to a new concept: generative business practices.

This appears to be a crystallisation of various strands of good working practice, juxtaposed with traditional notions of productivity. I hadn’t come across the author, CV Harquail, before, but she has an impressive CV.

The shadows we castThe clearest expression of the idea of a generative practice is provided in a post from last December: “actions, ways of doing, and ways of thinking, that don’t execute a plan but instead create unpredictable opportunities for everyone”

As I read more, this idea resonated with many of my thoughts about good knowledge management. Whilst we sometimes know from the start what impact our work will have on our organisations, sometimes the results are necessarily less tangible.

Broadly speaking, there is also a spirit of generosity amongst those who work in knowledge management — both internally (sharing ideas and insights and encouraging those habits within the organisation) and externally (working with others to deepen understanding about the field).

The more detailed explanation confirmed my thoughts:

Something is “generative” when it’s able to originate or produce something, or to give rise to new possibilities.

  • Generative ideas produce new ideas,
  • Generative process produces new ways of doing things or new outcomes,
  • Generative learning enhances our ability to create,
  • Generative relationships build new capabilities in both partners, and
  • Generative leadership helps others see opportunity in their actions.

Generative practices are important because they make new things possible. They have the capacity for ‘more’ built right in.

Generative practices make new opportunities possible, but not inevitable. We don’t know and can’t predict specifically what a generative behavior will trigger. We can only expect these practices to create openings and invite new outcomes to emerge.

I need to reflect a little more on this idea and how it might help people assess the impact of knowledge management. I have already part-drafted a post on measuring the value of KM, and it may pop up in that.

A tale of two peelers: getting the tools right

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Our household batterie de cuisine covers most normal eventualities, with plenty of pots, pans and utensils. We even have three corkscrews, which will be useful if there is ever a vinous emergency. One duplication is particularly interesting, and provides a metaphor for the knowledge and collaboration tools provided by law firms or other organisations.

2014-10-09 19.11.51We have two peelers.

I am sure this isn’t surprising in itself (after all, we have three corkscrews). However, the reason why we have two peelers is interesting. My wife and I have strongly-held and divergent views on the utility of each peeler. She hates the one I prefer, and I cannot use her favourite to peel effectively.

So we both use different tools to produce the same outcome — peeled vegetables. Such a clarity of outcome is not always possible in complex organisations, but I think it is worth striving for. Without it, one can easily be sidetracked into shiny new toys whose purpose is not really clear.

Having settled on a desired outcome, one needs to work out how best to achieve it. In our household there was no consensus on this. Fortunately, peelers are inexpensive enough to be able to acquire different types to satisfy everyone.

Even in more expensive situations, I think it is important to do everything possible to meet different needs when adopting new organisational tools and processes. When I look at some firms who have invested significant amounts in knowledge or collaboration tools that are rarely used, the cause is usually either a poorly defined outcome (what is this thing for, and does the average employee care about that?) or a failure to understand how people work and how that might be enhanced by the new system.

This was highlighted (again) by a tweet from today’s Enterprise 2.0 Summit in London:

‘Small pieces loosely joined’ was at the heart of many early uses of social tools within organisations. It is an approach that allows people to choose the approach that fits them and their desired outcome best. When the organisation chooses which outcomes to favour, and implements a one-size-fits-all tool, it is almost inevitable that half or more of the people who would have used it are put off by something that doesn’t work for them. As a result, it is much less likely that the desired outcome can actually be delivered.

It is still possible for organisations to find the right tools for people to use — big platforms are not the only approach. If you are interested in giving your people the peelers that they will use, I can help — please get in touch.

Shifting the legal ecosystem

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I will probably return to the theme of the legal ecosystem in the future, but this post provides an overview for now of where I think we stand, and what the future may hold — to the extent that prediction is possible in this complex system.

Change or extinction?

Servants' stairs at Calke AbbeyIn the metaphorical ecosystem of the law, firms are like organisms — needing food to survive as individuals, and reproduction to survive as a species If there is significant disruption in either of these, organisms become weak and eventually die out. This can happen in nature, for example, if there is a major external event, such as the K-Pg event, or if a predator becomes more numerous, as happened with many of the species hunted to extinction by homo sapiens.

Firms survive when they have a constant stream of people to work in them (supplementing or replacing others) and new clients (or at least new work from existing clients) to provide work for those people. Any significant movement by one or other of those groups to alternative forms of legal problem solving or to avoid the law altogether will lead to the traditional law firm model dying out. Even a slight shift could be enough to small numbers of  firms that don’t adjust to the new reality sufficiently quickly.

The currently prevailing narrative is that the traditional law firm model is moribund. The first problem with this is that there is actually significant diversity amongst firms that may appear identical from the outside — there actually isn’t a single business model even for traditional partnerships. Another problem with this narrative is that it assumes that firms have not already reacted (and continue to react) to their changing environment — many are in fact intensely aware of market pressure and are actively finding ways of dealing with it.

Putting those objections aside, however, is the environment changing enough to lead to the extinction of legal dinosaurs? In particular: are lawyers (and other staff) and clients behaving appreciably differently, and how are firms reacting to their changed behaviour?

Shift in which direction?

Probably the best description of the alternative models for legal services was provided back in May by Jordan Furlong, in a blog post entitled “An incomplete inventory of New Law”. Before looking at the inventory itself, it is worth repeating Jordan’s description of “NewLaw”:

any model, process, or tool that represents a significantly different approach to the creation or provision of legal services than what the legal profession traditionally has employed.

With this in mind, I want to consider the way that Jordan has categorised his inventory. The first distinction he makes is between new approaches to resourcing (“Aligning Human Talent with Legal Tasks”) on the one hand, and technology-enabled applications (“Applying Technology to the Performance of Legal Tasks”) on the other. I want to concentrate on the first set of these — mainly because the technology applications have a different potential to affect existing business models than do the resourcing approaches. (I am also more familiar with the resourcing approaches — as Jordan points out, those tend to be found outside the US, whilst technology development is more prevalent in the US.)

Jordan breaks down the resourcing approaches into three primary types:

  • New-Model Law Firms
  • Project/Flex/Dispersed Legal Talent Providers
  • Managed Legal Support Services

I want to group them slightly differently to help in thinking about their impact on law firms, their people and clients.

Looking at the businesses in Jordan’s inventory, I see the following groups:

  • Providers of a full spectrum of legal services, direct to clients
  • Providers of basic legal services, or personnel, direct to clients or law firms
  • Providers of legal expertise, direct to clients or to law firms

Full-spectrum legal services

Those businesses providing a wide range of legal services are closest to the traditional law firm model for those seeking legal careers — they are likely to have junior or unqualified personnel, who then gain experience so that they can take on more complex work within the same business. They can be distinguished from the traditional law firm model in one or more of the following ways:

  • Pricing — they may use a variety of pricing models, especially fixed-price or value billing, but not hourly rates
  • Ownership — rather than a partnership, they might be organised along more corporate lines (to the point of being listed publicly in some cases), or legal services may be provided alongside other professional services
  • Delivery — their provision of legal services across the board is based on a novel technology or process platform

By contrast, the traditional law firm is a partnership wherein client needs are satisfied in whatever way seems right at the time, and work is billed by the hour.

What kind of impact will the businesses in this first group have on the traditional firm?

Changes in ownership model will probably percolate into the wider legal market last — there are strong vested interests in partnerships that make it difficult (short of acquisition) to change the way firms organise themselves. However, some firms have become much more ‘corporate’ — relying heavily on professional management, for example — without ceasing to be partnerships. Ownership alone is also unlikely to be a significant factor affecting clients’ or employees’ choices, although the availability of legal and non-legal services together might be attractive for some clients.

Businesses founded on distinctive pricing models may find their territory invaded most quickly by the traditional firm. It is important to remember that pricing models are not necessarily a unilateral choice — very few law firms will have not seen clients asking for capped fees, or fixed prices, and most of them will have found ways of meeting those requests. As clients become more confident in using alternative pricing models, law firms will move quickly to adopt them. In this scenario the billable hour will die a natural death.

Which leaves alternative delivery models. Most of those models provide real benefits to clients, by way of improved service quality, cost or speed of work. It is sometimes harder for lawyers to see good reasons for changing their own ways of working. Clients may be able to force their existing law firms to adopt new pricing models, but they are unlikely to be able to make them change their processes significantly — few clients have sufficient leverage with their firms to do that. As a consequence, clients that want their legal services provided differently will have to choose firms that have already changed.

The way law is done, then, is the new battleground for clients — firms and other legal services businesses that meet new client needs will (slowly, but surely) start to steal the market from the old and staid.

What about people working in law firms? The picture here is much less clear. Paul Gilbert has written of in-house lawyers being in thrall to their law firms:  “a form of legal services ‘Stockholm Syndrome’ that plays out between law firms and their hostage clients.” I think there is a similar effect within firms themselves. The promise of partnership (at some distant point in the future) leads many associates to put up with poor (almost oppressive) working practices in the hope that there will be ‘jam tomorrow’. Some enlightened individuals will fight within their firms for changes in the business. If they cannot make the firm change, it is easy to jump to another firm that will change — or to another business altogether. My uncertainty comes from not knowing how many of the enlightened there are. That is the talent pool for new legal businesses, but it might be quite small. If so, that will be a limiting factor for NewLaw.

Services at either end of the spectrum

The other two groupings (providers of basic legal services and of legal expertise) face some of the same issues as the full-spectrum businesses. However, they could also affect the legal ecosystem in their own ways.

At the basic end, we have businesses that specialise in providing low cost legal support, possibly at scale. They may work as stand-alone businesses using an outsourcing model, or as agencies for freelance workers. (Some firms have created a similar capability within their own organisation to achieve cost/efficiency savings.)

At the other end, we have businesses who provide high-end legal expertise on a consultancy basis (or as an agency for experience lawyers).

Both of these types of business can provide real value for their customers — whether they be law firms or in-house legal teams. The demand for legal services is not always consistent, so having a readily available flexible resource to deal with increases in demand when necessary is a real boon. However, their impact on the market for legal personnel is currently minimal. (Remember that there are nearly 130,000 solicitors in England and Wales.) There is probably also a natural limit to their growth because of the available talent. The businesses providing alternative resourcing of experienced lawyers depend on a flow of such lawyers from law firms and (less often) in-house teams. Those providing basic services have a larger pool to draw on (given that their personnel need not be qualified), but unless they offer some sort of career progression they will need to dip into that pool very frequently as their people move on.

If the alternative resourcing businesses are limited by the supply of personnel, client demand might exceed the service available, leading to frustration and a grudging reversion to the service provided by traditional law firms. One way for these alternative resourcing businesses to ensure that supply of talent can be maintained would be to build strong links with others. For example, if basic service providers suffer from high rates of churn amongst their people (resulting in high recruitment training costs and stagnation in service provision), they might benefit from finding ways of offering their better staff a route to qualify as lawyers (or into related professions). This could be done in association with their in-house clients that need junior lawyers and can’t afford to train them. Likewise, those businesses that depend on a flow of experienced lawyers could turn to the same in-house teams just as their lawyers start to become jaded from working just with one client.

Looking forward

In a previous post, I pointed out that over 90% of trainee solicitors were trained by law firms, and a third of those were in the larger firms. I don’t know, but I would guess that most of those trainees embarked on their careers aspiring to become a partner in the same firm. That was certainly the predominant view amongst my peers in the 1980s. In the event, many of them in fact moved to different firms to become partners. And some moved in-house. As long as those expectations remain, it is likely that the legal ecosystem will only change slightly at the periphery. Despite the existence of alternative career patterns, the cradle-to-grave traditional law firm will continue to be the aim for those embarking on a life in the law unless the alternatives can show themselves to be significantly more attractive. Remember Jordan Furlong’s definition of NewLaw only required the new business to be different — better is harder.

As things stand at the moment, then, I would be surprised if law firms died out altogether. There will be some movement towards new ways of delivering legal services. Some of those new ways will be adopted by firms themselves, as well as being offered by new businesses. The least flexible, most traditional firms will probably fail as their clients and people migrate to better places. Some clients will turn their backs on traditional firms altogether, for all sorts of reasons. Similarly, some people seeking a legal career will choose not to fall into the traditional rut. But I suspect many (possibly most) clients and people will stick to the model they know.

The fantastic thing is that there is a greater choice of legal services now than ever before — for clients and for people who want to work in the law. The real change in the legal ecosystem is that the traditional law firm has lost its dominance force. People and clients will be responsible for the shifts to come. We cannot predict the direction of those shifts without knowing how clients and people will reaction to change.

[The image at the top of this post was taken in the former servants’ quarters of Calke Abbey, near Derby. It seemed appropriate, given that Calke is such a good example of the way the stately home declined so quickly in the 20th century, even without worrying about the servant problem.]

People in the legal ecosystem

Mark Gould3 Comments

This is the third part in my exploration of the legal environment. I have done a general overview and looked at the role of clients. Now I want to turn to people — the people who work in the law in one way or another. What impact do changes in the legal ecosystem have on them, and how might they affect it in turn? This is a slightly broader overview than the clients post, for reasons that I hope will become clear.

These boots have been walking

Any legal business depends on people. As I have argued previously, the law is a human system that depends on humans for its operation and interpretation. That is as true for traditional law firms as it is for their new forms of competition. (Those new businesses that offer technology solutions will have some human involvement somewhere — it is just outweighed by technology.)

The way people work in the law is changing. There are two major strands to this change — uncertainty in legal careers and diversification of roles within firms. We are partway through the first change, and the second is fairly novel but may be more far-reaching.

Lawyering now and in the future

Until a decade or so ago, the obvious choice for someone who wanted to embark on a career providing legal services (in England and Wales, at least) was to become a trainee solicitor (other options include going to the Bar or becoming a Legal Executive, but fewer of those opportunities were available).  In 2002/03, 5,650 training contracts were available. (This and other statistics here are compiled by the Law Society annually, unless otherwise stated.) By 2012/13, this number stood at 5,302. There had been a slight rise during the decade, but there was a sharp drop in 2011/12 (for comparison, 3,681 training contracts were available in 1992/93). Over the same period, the number of solicitors with practising certificates had risen from 92,752 in 2003 to 127,676 in 2013 — a 38% increase. So the profession is growing, but not necessarily renewing itself at the same rate.

Where are solicitors employed? The majority are in private practice, but there is a long term trend of growth in the in-house sector: until 2003, about 15% were in-house, but this had grown to 21% by 2013. However, training principally takes place in private practice: in 2002/03, almost 95% of all training contracts were offered by law firms. I don’t have access to the most recent statistics, but in 2008/09 law firms provided 93.5% of training contracts. Of those contracts, about one-third are provided by firms with 81 or more partners (32.9% in 2002/03 and 34.9% in 2008/09).

Alongside solicitors, legal work is done by barristers (of whom there were 15,387 in 2010 — nearly 3,000 employed in law firms or in-house), legal executives (around 20,000 members of the Chartered Institute of Legal Executives) and paralegals (about 200,000 according to estimates by the National Association of Licensed Paralegals). As one moves away from the traditional legal professions, it is harder to find authoritative figures — the Legal Standard Board in its 2014 Annual Report only claims to cover a regulated community of 163,110 (including solicitors, barristers and legal executives, but not paralegals), whilst the Institute of Paralegals appears to provide no data at all on its membership numbers.

Overall, the picture for aspiring lawyers is less rosy than it might have been in the past. Opportunities to become solicitors or barristers appear to be stagnant. At the same time, some firms appear to be using paralegals without considering how the role might develop. This is illustrated starkly by a statement extracted from the Legal Education and Training Review report by Alex Aldridge:

There is an amusing quote in the Legal Education and Training Review (LETR) report from a ‘legal employer’:

“I want technicians who are prepared to do the something 100 times over and over again and are happy to be really good at that for 50 years.”

Unfortunately for big-earning law firm partners, the world doesn’t work like that. Life can’t stand still: everyone needs new challenges, promotions, more money — a sense that their careers are developing. That is the problem now facing law firms which have taken advantage of the growing surplus of cheap paralegal labour that has been churned out by the law schools over the last few years.

Aldridge is concerned that this is a problem for law firms, but I think it is a greater problem for paralegals. Some firms will work hard to develop proper career structures and help their people acquire relevant qualifications, but many will not. Until there is a change in the market, I doubt that firms will be driven to do the right thing even by disgruntled paralegals. (It has to be noted that their representative bodies are trying to force the issue, but the more recalcitrant firms will ignore them as they have always done.)

Making the law work for clients (without lawyers)

There has long been a divide in law firms between lawyers and so-called non-lawyers. (The term ‘non-lawyer’ was deprecated even before the Managing Partner Forum launched its Unsung Heroes campaign in 2004. A quick web search will also show that professionals of all types use ‘non-‘ as a marker for those who don’t have their expertise — lawyers are not unique in that.) This divide means that lawyers have usually been responsible for all aspects of client work — managing the relationship and providing the legal service. On top of that, lawyers are privileged by most regulatory regimes by being the only permissible owners of the firm — in only a few jurisdictions are non-lawyers allowed to become partners (or to wield equivalent de jure power).

It is illuminating to see how things work in other professional services firms. Advertising agencies, for example, have long divided work between account managers (handing the client relationship, but not actually creating advertising) and so-called ‘creatives’ (who write the advertisements and create the artwork, but rarely deal directly with clients). Despite having distinct roles, neither is privileged over the other — partners in an agency will be drawn from both sides of the divide. Over time, other important roles have developed (such as media buyers and account planning) because there was a clear need for those functions.

But just because there are different roles contributing to client success (whether in advertising or legal terms), we need to be sure we know how all the bits fit together. Dave Trott puts this well in this presentation to a group of young planners (0’0″ to 1’30” in the video).

This is apparently “What Creatives Want From Planners.” That’s really quite simple. What creatives want is simplicity, clarity and inspiration. What they don’t want is complexity, confusion and prescriptive thinking.  What they normally get is the latter — complexity and confusion — and they don’t get simplicity, clarity and inspiration.

Most creatives don’t like planners. I don’t like planners. I also don’t like creatives or account men. I don’t like anyone who limits themselves to their department. Anyone who thinks the job is just to do what their department is.

So I don’t like planners who think their job is just planning. They’re useless to me and they get in the way.

What I love is people who are bigger than their job. I love ad-people.

I love people who want to understand the whole job of what we do. And people who want to contribute to the whole of what we do — not just learn some useless planning language, talk useless planning language and impress each other with their planning language. That’s just planners talking to planners about planning, and it’s not advertising.

It is interesting to contrast this notion of people being bigger than their job with the idea that one person should do a multitude of jobs (the normal law firm model). The motivation for both is the same — a desire to be sure that good work is being done for clients. The outcome is very different. Jacks-of-all-trades are known not to do as good a job as specialists who understand other jobs and can evaluate them but don’t do them. Most important — clients know the difference. And because they know the difference, they can act on it — to the point of moving their business to a firm that suits their needs better.

That is one reason why a number of law firms and new legal businesses have developed new roles, many of which break down the barrier between support and delivery.

  • Law firm finance professionals have become pricing experts — advising lawyers on better ways of charging for their work. They can only do this if they understand the client’s perspective as well as the work being done (as well as the obvious finance issues).
  • Business development people have become more prominent in managing client relationships. Some of them will work as closely as the firm’s lawyers with an in-house legal team — helping them resolve issues that are as important to them as legal problems.
  • The way legal work is done is being rethought — using process mapping more intelligently and developing project management techniques. This may draw on a firm’s internal project management capability and its knowledge team,
  • Firms are starting to think of themselves as more than providers of legal advice. They are using internal expertise in HR, Risk and other areas to offer consultancy services to clients.

These and other initiatives are breaking down the expectation that only lawyers can be responsible for so called ‘client facing’ or ‘fee-earning’ work.

How do firms decide what to do? The first thing must be to take account of what clients are asking for (both directly and implicitly). But there is another factor — what skills and capabilities does the firm have at its disposal? To some extent, the direction a legal business takes will depend on the things it can already do and the things it can easily buy. As a result, good people who don’t fit the existing mould (like traditional lawyers) will be at a premium. They are the ones who are likely to be best able to help steer the most dynamic businesses in new directions.

What does the future hold?

It will take time for firms to settle on the mix of roles and activities that suits them and their clients best. Over that time, some will also move to different business models. For some, opening up internal roles to the outside will lead to appointing some of their best specialists of all types to the partnership. Some may choose to move away from partnership altogether. For firms that take on (and develop) significant numbers of non-traditional lawyers, there is a choice to be made about the remaining lawyers — should there be fewer of them? how should they specialise? what does a development programme look like?

For a long time, law firms all looked pretty similar. That homogeneity made it hard for clients to differentiate between firms. As a result, clients tended to focus on individual lawyers — they decided who to instruct based on historic personal relationships. That will still continue, but trust is more likely to become a hygiene factor. As clients become more sophisticated and law firms develop in different directions, it will become easier to latch onto the the things that a firm does that fit what the client business needs when choosing lawyers.

But what does it mean for people who want to provide legal advice to clients? Law businesses are moving away from providing legal solutions to solving business (and personal) problems. Doing that successfully will demand a wider array of different roles and approaches than firms currently have. But the uncertainty about how those will evolve — which will be successful and which will fail — will be borne primarily by people. Those individuals who find a niche that fits them and the environment will be successful. But there will be others who won’t find a comfortable fit.

As Dave Trott says later in the video (at 12’11”) “Form follows function. First we define the function, then we work out the form. And we’ll know if the form is good by how well it delivers the function.” (He then goes on: “We’re solving business problems, we’re not solving advertising problems. Advertising is solving business problems.” We have more in common than many lawyers would like.)

At the moment, the functions of different legal businesses are still being redefined. Until they are more settled, there are plenty of opportunities to test different forms. Different ways of working. New opportunities for people who want to play their part in solving our kind of business problems.

The risks of change

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The series of posts on the legal environment will continue, but this is a quick post about change and risk.

I recently met Richard Martin, who is a film and cycling aficionado as well as being a member of Change Agents Worldwide. He wrote a fantastic series of blog posts exploring the idea of the cycling peloton as a metaphor for an agile and adaptive company, but today he wrote about stage 9 of last year’s Tour de France in which the Garmin-Sharp team rode in a way that had never been seen before — taking the other teams by surprise and helping one of their riders, Dan Martin, to win the stage. The story is also told in this video, which is worth watching even for those who aren’t fans of the sport.

https://vimeo.com/72820136

There is a passage in the video that particularly struck me. Charly Wegelius, the Garmin-Sharp director sportif comments on how the sport has become a bit predictable (at 9′ 13″).

A lot of people who work in cycling have got so much experience that they go to sleep in a way, and they stick to their own plans that they’ve done, you know, for many years. They can get caught by surprise because they don’t think differently very often.

I am sure that resonates for people in many organisations. I can certainly see it in many parts of the legal sector.

The downside of being as adventurous as Garmin-Sharp were is that catching people by surprise is high-risk. Rather than getting a stage winner, the team could have completely burned out and been dropped to the back of the race — and possibly even outside the cut-off time for participation in later stages. There was no middle ground. To make this change, they had to take an incredible risk.

It is not surprising that, faced with such risks, organisations avoid making significant changes.

But elsewhere in Richard’s blog post, he describes all the things that have to come together to make a stage of the Tour de France work (informed by watching the third stage of the race this year as it sped through the Olympic Park in London). This interconnectedness — organisers, local communities, police forces, the teams, the spectators, the weather, potentially malicious elements — makes it impossible to predict the outcome even of  a familiar plan. A radical change may be obviously risky, but doing what has always been done could be riskier.

As Richard puts it:

It is this very interconnectedness, this interplay of multiple systems, that reinforces my belief in the peloton formation as an apt metaphor for a modern, agile, adaptive and responsive organisation. One that has to operate under loose frameworks, tolerating risk, constrained by Government and regulatory policy, responding to shifting market conditions, seeking to evolve, transform, succeed, survive.

I think there is another element, which is that different members of the organisation need to have the autonomy to do what is necessary to deal with things as they arise. The Garmin-Sharp team did that. Jonathan Vaughters (the team manager) set the goal and made it clear that the most risky approach was permissible. Charly Wegelius outlined a possible plan of action with the riders, as well as being on the course in the team car giving instructions over the radio. But most importantly, each rider was trusted to do whatever he thought necessary to play his part in delivering the result — each playing to his own strengths and understanding the strengths and weaknesses of the rest of the team (and the other teams) as well as the nature of the terrain.

I am not sure that many organisations can work as well as that.

Clients in the legal ecosystem

Mark Gould1 Comment

This is the second part in my exploration of the legal environment. The first part provided a general overview, and this moves on to look at how clients affect the operation of the ecosystem. For now, I am concentrating on business clients, rather than individuals.

Birmingham Magistrates' CourtHistorically, legal advice has tended to be a distress purchase, and this persists to some extent. The model is well stated by Jeremy Hopkins:

The vast amount of the buying market … have a legal problem, to which they need an effective solution at the right price.

Over time, as the affairs of businesses and wealthy individuals became more complicated, lawyers became trusted advisors. For some, this might mean such proximity to power that they would be asked for advice on non-legal issues. By the 19th century, if not before, the role of general counsel (GC) was starting to become more common. (This article [PDF download], by Sarah Helene Duggin provides a useful and referenced potted history of these developments in the United States.)

It is interesting to observe how in-house lawyers have grown in significance, and especially to look at the factors that have affected that development. Early GCs tended to be senior lawyers whose close relationship with one client resulted in co-evolution together. These GCs were characterised by deep experience of legal practice, together with insight into the business they served comparable to the other members of the board and senior management. Their work would typically be advisory, and law firms would be instructed to take on the more mundane activities.

One obvious (and cynical) reason for using external firms is to take advantage of their professional indemnity insurance. More significantly, the cost of running a legal team — especially ensuring that lawyers are well trained and up to date on the law — was not within the means of most companies until legal information became more readily available piecemeal via online systems. In addition, in a time when there was little regulation of transactions or financial activities, the need for detailed legal advice was so much less important that an internal legal team was simply not necessary.

By the end of the 20th century, it looked like things had stabilised into a fairly clear picture. Most businesses of a significant size had some form of internal legal capability — whether a GC alone, a Head of Legal with a small team of generalist lawyers, or a large multi-skilled group of lawyers rivalling many law firms in terms of size and expertise. The larger in-house teams were able to support trainee solicitors, so that it was possible for a lawyer to spend their entire career outside private practice.

From the perspective of law firms, in-house lawyers were one source of work, together with executives and others at all levels of business. Sadly, I don’t have any data (if someone else does, please let me know in the comments below), but my sense is that until the early 2000s, relationships between law firms and their commercial clients involved the in-house team less than half the time. For many firms, therefore, the natural place to invest in those relationships was anywhere but the in-house team. At this stage businesses tended not to  appoint panels of law firms for their work, and this also meant that the natural focus for lawyers was on those who were directly responsible for instructing lawyers.

The last 15 years or so have seen major changes. Commentators tend to focus on the years after the banking crisis of 2008, but other factors prior to this had a part to play. One that has already been referred to is the way the information landscape has shifted. Until PLC (now Practical Law) was founded, law firms still had the upper hand in terms of access to legal current awareness and standard documentation. Businesses might have had access to databases like Lexis and to law libraries (either their own or those of local law societies), but those rarely gave much more than the primary materials: analysis of legal change was missing. PLC changed that — putting their law firm and corporate customers on a level playing field. The ready availability of other forms of technology (even basic tools like word-processing, email and law firm extranets) also eroded the distinction between in-house and private practice.

In-house lawyers who were better equipped to compete with external lawyers could start to raise their profile within their businesses. In particular, they were increasingly responsible for controlling the flow of work to law firms. It then became more common to appoint panels of law firms to whom instructions could be give, as a way of managing the flow. Initially panels were sometimes quite large, but there has been tendency more recently to reduce numbers of firms on each panel. (Barclays being the most recent example.) One consequence of better management of law firms has been greater visibility of legal spend within the business. Once the cost of lawyers became a significant line on the balance sheet, it was only a matter of time before Finance Directors started to look carefully at how the money was spent. This is the beginning of costs pressure on law firms — budget control within businesses.

Now, as the Financial Times reports [subscription required], in-house lawyers aren’t just instructing firms freely as they might have done before. They are managing their budgets carefully and turning to a variety of other providers.

Nearly two-thirds of general counsel at some of the world’s biggest businesses have already used so-called contract lawyers rather than their traditional law firms, according to a poll of 185 in-house lawyers around the world with a collective legal budget of £3.5bn. The figure rose to 74 per cent among respondents who said they were likely to use contract lawyers over the next five years.

This clearly has an impact on law firms — it means most will have to adapt to this new environment or die away, unless they are in a niche that can continue to support them. (This is a basic evolutionary principle.)

But how should firms react? The problem for many firms is that they have tried to guess what clients need and invested heavily in a limited range of responses, which can be loosely defined as disaggregation. That may still work for some, but some initial evidence in The Lawyer suggests that clients are not overwhelmingly impressed.

Respondents were asked overall how satisfied are they with the level of innovation shown by their primary legal services providers in relation to the delivery of legal services? Just 7.1 per cent said they were very satisfied.

The Lawyer’s research found that the primary factor when buying legal services for the majority of in-house lawyers was quality.

What isn’t clear from the report is whether firms have yet to change at all, or whether they have started to change but in ways that clients don’t like. What is clear is that clients are still not confident that they are getting what they need.

The challenge for firms is more stark now than it has been in the past, but otherwise things are no different — it is virtually impossible to predict the future from current or past behaviour. In 1890, who would have suspected that 80 years later businesses would commonly have teams of internal lawyers? In 1970, who would have predicted that those teams would be competing effectively with external lawyers by the turn of the century? In 2000, who predicted that in-house teams would have the upper hand and be turning away from law firms entirely? I am not sure that even Richard Susskind saw that development coming.

What happened over that long history was that firms and clients evolved together into new relationships and business models. That is what will happen in the future too, except that the term ‘law firm’ will have to expand to include many new types of business, some of which may depend much less heavily on lawyers than firms do now. As the new legal landscape develops, clients will also continue to change in ways that are unpredictable as responses to those changes. Only by keeping an eye on what is happening, and regularly testing new ideas will firms be able to have any confidence in surviving.

There is a future for some forms of legal business, and there will continue to be some kind of exchange of value for legal services — they won’t become a purely internal function. As legal businesses change the way they work, it is possible that they will start to be able to meet currently latent demand for their services. But what might this mean for lawyers? The next post in the series will explore that.

All change!

Mark Gould7 Comments

2014-05-22 18.23.58Thirteen years ago, I packed my bags and left academia. In doing so, I swapped one type of institution (where I had been for almost 18 years: undergraduate, postgrad, teacher) for another: a law firm. At the end of May, I left that firm and institutional life altogether. I am now in the third stage of my career — working as a consultant helping businesses find ways to use their knowledge more productively.

It will take a little while for me to settle to the new role. There will be some changes here too. My intention is to build a set of pages for the business on top of the old ‘Enlightened Tradition’ blog. If WordPress works as described, any old links to the blog will still work as before.

I hope also that the frequency of posting will pick up too. The past few years were very busy for me, and it became harder to sustain the blog. I regret that — I have many draft posts that are now too old to be useful.

The blog is important to me because the new venture will build on the thoughts and ideas I have developed here as well as on the institutional experience I have had.

The key point there is that my thoughts and experiences have been shaped by the hundreds of people in my network — those I have worked closely with, as well as the looser connections that come through comments here and on Twitter and LinkedIn. Over the past few weeks, many of those people have also assisted and guided me through the process of parting from employment and into consultancy. There are too many people to thank individually, but I hope they each know that I am immensely grateful for all of their support. The network is indeed powerful, and beneficent.

What do clients need? Relationships and story-listening

Mark Gould1 Comment

It is difficult to imagine that anyone in law firm management is not yet aware of Bruce MacEwen’s masterful review of the current state of the legal market, entitled “Growth is Dead.” The series is now up to its tenth instalment and the focus has turned to clients. Whilst the whole series is required reading, this part resonated particularly for me for a number of reasons. It contains some truths that KM folk should reflect on, and one of the comments raises a common issue where a traditional approach often fails.

As all good discussion of clients should, Bruce starts with Peter Drucker. Drucker’s observation that all firms must have clients leads to a brief analysis of the evolution of client service in the law. Bruce identifies three phases:

Phase I: Sell what you make

Firms in Phase I find a comfort zone of things they (as proud and unbending autonomous individuals) enjoy doing, and they assume without, I imagine, really giving it much conscious thought, that since they enjoy it clients will appreciate it, or because they find it interesting clients will too.

…

Phase II: Make what sells

Phase II is a bit more mature and purposeful. In this phase, lawyers and firms try to analyze what services clients are seeking and purchasing, and then attempt to mold their offerings to client demand.

…

Phase III: Solve the client’s problem

This phase has several characteristics to commend it:

  • It goes straight to the heart of what the client needs professional counsel for;
  • It’s agnostic as to exactly which practice area or practitioner, if any, is best suited to the matter at hand;
  • And most important by far, it postures the entire offering and engagement around what the client needs, not what you can do.

Bruce is not convinced that many firms have made it to Phase III. (Indeed, he goes as far as to say that he believes “very few firms indeed” understand it, or even the fundamental shift in the market.)

I think the same phases apply to KM (certainly in law firms, and probably elsewhere as well).

The equivalent to “sell what you make” in Phase I is the repository-building approach to knowledge. It depends on a conception of knowledge as stuff that can be gathered, traded and measured. The knowledge or information professional is a gatekeeper for material that is held “just in case” it might prove useful in future.

The usual counterpart to “just in case” is “just in time” — this is the KM equivalent of Bruce’s Phase II “make what sells:”

The distilled pitch is something like this:

“Just tell us what legal services you need, and we’ll get right on it.”

While this takes the lawyer out of the very center of the picture, and gives the client a bit of breathing room alongside, it’s still passive and reactive. To begin with, what if the client doesn’t know or can’t articulate what they need? Worse, what if your firm really isn’t ideal for what the client wants? In that case “making it” for them might not be doing them any favors.

Bruce is talking here about lawyers dealing with clients, but it applies just as well to knowledge professionals working within businesses. This passive, reactive, transactional approach to KM will get you a bit further than the repository-building approach, but there is still no guarantee that your work will really make a difference. And making a difference is essential, otherwise the business can do without it.

Phase III gets to the heart of things:

It’s not about what the lawyers prefer to do or are in the mood to work on; nor how brilliant, experienced, and highly credentialed they are (though I’m confident they are exceptionally so); nor about how much other clients adore them and sing their praises; nor, finally, is it about the law firm at all. It’s entirely about making the clients life easier, less worrisome, and letting them focus on their business and not this potential legal landmine.

A very wise managing partner, who had studied at the feet of one of the builders of a great New York law firm, once told me that his primary job was making the client look good: “The wins are theirs; the losses are mine.”

Good KMers should also focus on making people look good. What does the firm need? That is what should be done.

This is where we get to the question in the comments to Bruce’s post: Bob Jessup asks how to get meaningful feedback from clients. This is also a problem for knowledge professionals. Just as clients may ask for something when really they need a completely different approach, so our colleagues may have preconceived ideas about their knowledge needs (they might want a repository, but never use it when it is provided, for example). How to get round this problem.

I think there are two very different approaches available. The first is to emulate Apple or the early BBC — don’t ask people what they want, but just give them something that you know to be high quality in the knowledge that they will come to love it. That might work if (a) you are absolutely clear about your purpose and never divert from it (something that only people of Steve Jobs’s or Lord Reith’s calibre can guarantee), and (b) your market is still in its infancy.

The second approach is to concentrate on relationships and on natural, authentic communication. In his comment, Bob Jessup says:

Clients, like anyone, don’t like to give bad news, and often find it hard to “put their finger” on what might be wrong. Those in-house counsel giving C’s to the outsiders probably aren’t giving those C’s when presented with an inquiry or a written evaluation form.

That isn’t a surprise — anyone familiar with the work of Dan Ariely and other behavioural economists will know that people often say very different things from what they do. But how do we find out what clients really feel, or what they really need. There is a clue elsewhere in Bruce’s post.

After describing how law firms approach client service, Bruce turns to the client perspective. Drawing on an Inside Counsel survey, he lists the law firm offerings that clients like but law firms don’t deliver. Here are the top three:

  • Secondments
  • Seminars at the client’s office
  • Regular service review meetings

Coincidentally, these are all the best ways to build genuine relationships with clients and learn about their business needs. (As a slight diversion, it is essential to understand that the real needs are business needs, not legal ones: Tom Kilroy has recently provided some useful insight into what in-house legal should be thinking about in terms of their internal relationships.) Having a lawyer embedded in a client’s business or legal team will always ensure that they have a much better understanding of the issues the client faces — no amount of direct questioning (whether by a lawyer or a third-party) will generate that level of knowledge. (Of course, the same is also true for knowledge programmes — as Dave Snowden famously says, “We always know more than we can say, and we will always say more than we can write down.”)

Like secondments, holding seminars on the client’s premises will often uncover issues that might not come to light through a questionnaire. The comfort of being on home ground will encourage people to say things that they would not express in more public situations. This might also be an opportunity to involve people other than the direct in-house client: do you know what your client’s contract managers, procurement teams or sales staff think of the contracts you draft? Again, this has resonances for knowledge people. Whilst we might think we can identify what is needed by talking to our colleagues, and building relationships with them, it is also valuable to find out what clients think of the work that our colleagues do. Armed with that insight, we can ensure that they have what they need to look good in front of the client next time.

When we get to service review meetings, I think we are close to the heart of Bob Jessup’s question. If those meetings feel like mechanical exercises (maybe using a set script or a written evaluation form), then they won’t build relationships and clients will persist in hiding what they feel. What is needed is genuine conversation. The insight we need is tacit knowledge (for want of a better term), and “tacit knowledge needs to be shared through conversation.”

Conversations need time to develop, but they generate narrative — anecdotes or stories — that are essential to make sense of things. Another way of generative narrative, which might be useful when there is no single client view, might be to use anecdote circles. Shawn Callahan and his colleagues at Anecdote have created the “Ultimate Guide to Anecdote Circles” — an excellent introduction to and explanation of the method.

In the end, then, the challenge that law firms face in really getting to the heart of what clients need from them has an exact counterpart for knowledge professionals. More than that, the tools for achieving this insight are actually knowledge tools, but only if we situate ourselves squarely in the Phase III approach to understanding and helping people.

Snippets on the future for law firms

Mark Gould1 Comment

I am intrigued by what the future historian will make of the economic and commercial change we are currently experiencing. Will this be another ‘world turned upside down’ moment, or just a blip in the continuum? Over the past couple of days, I have read a few commentaries suggesting that law firms at least are facing real upheaval. They also start to indicate what the way out might look like.

First, a couple of last month’s posts from Bruce MacEwen. It is trite to point out that the supply side of law firm economics is notoriously fickle: Bruce links the problem to change on the demand side.

Imagine for a moment you are in charge of designing the balance sheet of one of these firms (or any sophisticated law firm regardless of location and absolute size).  As you examine what role debt should play, perhaps the first question that should come to mind is “what assets do we have on the other side of the ledger, against those hypothetical liabilities?”  And the answer is:  Elevator assets.  That’s it, folks.  Your firm’s primary and only meaningful asset is its talent:  Its human capital, a/k/a its people.

And on the other side of the ledger?

What about accounts receivable, a pledgeable asset since the Peruzzi and Medici families in medieval Tuscany, if not before?  Normally, a law firm’s accounts receivable are a highly reliable credit—one with something approaching the creditworthiness of the firm’s clients themselves.  But consider:

  • Discounts and writeoffs are more widespread than at any time since I entered the practice;
  • Realization is systemically lower than at any time in memory (by “systemically” I mean industry-wide, not firm-specific);
  • And, most importantly, if a firm’s partners and/or clients begin to lose confidence in the firm, receivables decline in value abruptly and often irretrievably.

In sum:

Fundamentally, building long-term debt on to the balance sheet of an enterprise whose only material assets are readily marketable and freely mobile human beings is to repeat the classic mistake of the institutions at the core of virtually every post-World War II financial crisis in the United States: It’s to create a timing mismatch.

That is to say, firms doing this are securing long duration liabilities with short duration assets. Should anything imperil the value of the short-term assets, the roof can cave in before you can evacuate the building.

How can law firms protect themselves against this problem? In a later post, Bruce hints at the traditional way they have done this — by trying not to scare the troops.

Imagine a firm that allocates its talent, investment, and management focus consistently every year, making incremental changes but following the same “steady as she goes” broad pattern year after year.  Imagine another firm that consistently evaluates the performance of practice areas and offices over time and adjusts the allocation of lawyers and other resources based on relative market opportunities (be they expanding or shrinking).

Which would you guess is going to perform better over some suitably extended timeframe?

And which model do you think most law firms actually resemble?

The answer is that most law firms favour the ‘steady as you go’ approach, which is also the one in which performance is more muted. This reflects research done by McKinsey into successful strategy in corporate America.

McKinsey sums up the results this way:

  • Companies that reallocated more resources—the top third of our sample, shifting an average of 56 percent of capital across business units over the entire 15-year period—earned, on average, 30 percent higher total returns to shareholders (TRS) annually than companies in the bottom third of the sample. This result was surprisingly consistent across all sectors of the economy. It seems that when companies disproportionately invest in value-creating businesses, they generate a mutually reinforcing cycle of growth and further investment options.
  • Consistent and incremental reallocation levels diminished the variance of returns over the long term.
  • A company in the top third of reallocators was, on average, 13 percent more likely to avoid acquisition or bankruptcy than low reallocators.
  • Over an average six-year tenure, chief executives who reallocated less than their peers did in the first three years on the job were significantly more likely than their more active peers to be removed in years four through six.

In other words, not only did “high capital reallocators” generate superior growth and returns, they did so (a) with lower volatility and risk, including lower risk of bankruptcy or acquisition; and (b) with less managerial turnover.

Bruce suggests that this process of constant review of profitable and unprofitable activities is something that law firms need to start to emulate. Unfortunately, that process will affect the firm’s position in the market for lawyers. It therefore needs to be matched with real attractiveness in the firm itself. Businesses like Google or Apple routinely drop products or service lines if they aren’t working out. Inevitably this will induce a sense of volatility (and nervousness) in their people: will I still have a job tomorrow? But Apple and Google are still places where people really want to work. The law firm that can create the same sense of positive nervous energy must surely have a winning ticket.

So what might that winning ticket look like? Two unrelated posts elsewhere provide some clues.

First, Robyn Bolton of Innosight, writing in an HBR blog post:

Here’s a quick quiz for you. Is it easier to get

A: 1% of a huge, established market?
or
B: 100% of a completely new one?

If you work for Apple, you might have picked B. But too often when companies embark on innovation projects, they pick A: that is, they start by believing that nothing could be easier than to capture a small chunk of a very big, existing market.

But to unleash the power of innovation to capture big markets, what matters is not how big any existing market is but how many people are wrestling with some problem that no current offering really solves, what we here at Innosight call the “important and unsatisfied jobs” of consumers — and non-consumers. When sizing an innovation opportunity, what you should be looking for are jobs what are widely held and currently poorly served, not lots of people who haven’t bought your own products yet.

I suspect that many firms concentrate too much on one or both of (a) their own internal issues or (b) resolving the problems that clients bring to them. Robyn shows how this can go wrong by examining what happened when Kellogg first tried to enter the Indian market.

Kellogg invested $65 million in establishing an operational and marketing presence to launch Corn Flakes, Wheat Flakes, and its “innovation” — Basmati Rice Flakes — throughout the country. “Our only rivals,” declared the managing director of Kellogg India, “are traditional Indian foods like idlis and vadas.”

Things didn’t turn out quite as planned.

How is it possible that Kellogg could envision building a $3 billion business in India, invest $65 million in the first year alone, and end up, 16 years later, with only $70 million in annual revenues? And how can other business leaders avoid making similar mistakes?

Kellogg’s mistake (admittedly easier to see in hindsight) was that it had taken a far too simplistic approach to identifying its “huge” market, merely looking for people who might want its products.

Essentially, the cereal company failed to understand that Indians culture favoured warm breakfasts, so a cereal served with cold milk was unlikely to be more than a niche product. They also struggled with pricing: starting from a base that was 33% higher than the domestic competitors. Better insight into the needs of Indian consumers might have led Kellogg to create versions of traditional foods that could be stored and prepared more easily.

Law firms could therefore improve their product by really getting to the heart of what their clients need to achieve — not the explicit needs, such as getting this deal done or settling this litigation, but the more important unspoken ones. What is the client’s market like? What pressures are there on profitability, costs, income, competition, regulation? What would help the business to meet those pressures?

Alongside this focus on the product (what the firm does), there is also a need to look at delivery (how it does what it does). This is something that Ron Friedmann examines in his most recent post.

Only a few firms will continue to win business on the strength of their name. The rest must provide clients with better service delivery to keep and win business. That means understanding client expectations and changing how how lawyers practice and the firm operates, for example, with alternative fee arrangements, process improvement, project management, KM, technology, new approaches to resource allocation, a better approach to staff support, value-add services (e.g., private content), and tailored business intelligence.

Ron’s post summarises three items from elsewhere, all of which point in the same direction: “firms must change how they deliver services.”

Let’s go back to where we started: the problem of elevator assets. Bruce MacEwen lists 26 law firms that are located within a 7 minutes walk of each other in New York. The point he makes is that this proximity could make movement between the firms a trivial matter. But that is only true (putting aside constants like the hiring process) if each of those 26 firms is practically indistinguishable — whether to its lawyers or to its clients. As soon as one firm stands out (as Google or Apple do in their markets), joining or leaving that firm is a much more significant step. The fear that constant change and improvement may bring could actually make the firm more attractive to join and more difficult to leave voluntarily.

Reflecting on the PSL role

Mark Gould

A passing comment in Ron Friedmann’s latest blog post has prompted me to recycle some material here that I originally put together for our own Professional Support Lawyers. In the context of a commentary on an interesting report by OMC Partners (commissioned by PLC), Ron notes:

Few large US firms, at least in their US offices, have PSL ratios even approaching those commonly found in the UK. (Some large US firms are now increasing the number of PSLs though in my view, it is premature to call this a trend.)

I think Ron is right to play down the trend. What would interest me more is to know what the US PSL community is being tasked with. That is because I think the role of PSLs in many UK law firms has changed significantly over the past three years or so, and that pace of change is not likely to slacken.

First, some history.

Harriet Creamer was Freshfields’ first PSL (and therefore one of the first in the City) in the late 1980s. She then became a partner with responsibility for knowledge management, and is now a consultant.  Over the past couple of years she has presented at a number of conferences and workshops on the changing role of the PSL. (Reports of those presentations can easily be found on the web, if you are interested.) In November 2009, Harriet summarised her thinking in an article in The Lawyer, entitled “Knowledge management needs serious consideration.” In it, she provides a potted history of the PSL and KM function in law firms, and finishes with a rallying call for change:

At many firms, the basic organisational tasks took longer than expected, and ­eventually became so time-consuming that many KM lawyers remained almost wholly focused on them. In some cases management of the KM function was poor and priorities were commonly set by client partners who misunderstood the ultimate goal or who had particular axes to grind. The vision of the KM function as the ­efficiency engine of the firm, constantly streamlining working practices and driving forward proprietary knowhow, became blurred. Now is the time to clarify it.

To do this it is critical that KM lawyers engage proactively with the business. Their central focus should be on ­profitability. They will need a clear ­understanding, at both the financial and technical levels, of the work undertaken and the systems adopted in the different practice areas.

The comments on Harriet’s piece are intriguing. They don’t display much insight or awareness, and some of them are unnecessarily vituperative. If they are typical of lawyers’ attitudes to KM and PSLs, we have a very steep hill to climb.

One of the firms whose PSLs have taken a lead in the strategic reaction to market change is Berwin Leighton Paisner. Lucy Dillon, Director of KM at BLP (and formerly a litigation PSL at Linklaters), wrote a short note for Law Business Review (“PSLs – Gatekeepers of Excellence”) summarising the ways in which she has seen the PSL role change over the last 20 years.

PSLs, with their experience of practice, are in an excellent position to help review internal processes to identify areas of inefficiency and offer solutions for improving service delivery. Standard forms, document automation, checklists, work flow systems, and FAQs are all areas where a PSL’s experience can be invaluable. They can apply their practical experience and their holistic approach to transactional work to “unbundle” the traditional deal model and identify smarter ways of delivering on clients’ objectives. Such solutions are a pre-requisite to faster turn-around times, while operating in a risk managed environment.

Some of the initiatives that Lucy describes are unique to BLP, and different firms will have different needs. The general theme — that PSLs can take part in driving change is, however, a universal one. I wonder how many firms can say that their PSLs are empowered to do this.

Regular readers of this blog will know that I am fond of drawing parallels with other areas of work to try and illuminate the challenges facing law firms (especially in their knowledge-related activities). I think a good comparison here is to consider the ways in which traditional media are dealing with changes in technology and reader behaviours.

In some (limited) respects, the role of a journalist parallels that of PSLs. Journalists are skilled at taking undifferentiated chunks of data and information and packaging them into useful chunks of knowledge. Historically this distillation and delivery has defined their role. Over the past decade, this traditional approach has become inadequate in the face of (a) rolling 24-hour TV news, (b) contribution to news channels by non-journalists (so-called ‘user-generated content’) and (c) commentary away from the news channels (on Wikipedia, blogs, Twitter, etc.). One result has been a huge decline in advertising revenues (exacerbated by the recession) and closures of many long-established newspapers. 

If you are interested in some reactions to the challenge facing journalism, I have a number of relevant bookmarks stored online. However, I think a couple are worth singling out.

Jason Fry is a freelance writer, editor, and consultant in New York. Writing about the challenge facing sports journalism in November 2009 (“This Is Broken: From Game Stories to, Well, Everything”), he poses a key question.

The question to ask about game stories is the same question to ask about everything we do in journalism: If we were starting today, would we do this? That’s the question. Not whether we’ve spent a lot of money on the infrastructure of producing something a certain way, or whether a journalistic form is a cherished tradition, or whether it still works for a niche audience, or whether it can still be done very well by the best practitioners of the craft. All of those questions are distractions from the real business at hand.

If we were starting today, would we do this?

So: If I were starting a sports site (or a sports section on a general-news Web site), would I pay a reporter or some third-party source for a summary of yesterday’s game, knowing that today my audience is much more likely to have watched the game, can get a recap on SportsCenter once an hour during the morning, can see the highlights on demand from a team or league site, and can watch a condensed game on the iPhone?

Absolutely not.

The problem as he sees it is that the medium for which traditional journalism is designed (the daily newspaper of record) has been overtaken by other sources. People get more value from those other sources, but journalists have failed to see that:

Why didn’t we change? Journalists are masters at filtering, synthesizing and presenting information, yet we’ve spent more than a decade repurposing a 19th-century form of specialized storytelling instead of starting fresh with the possibilities of a new medium. Newspapers could have been Wikipedia, instead of being left to try and learn from it. And what are we learning? The news article is in some fundamental ways just as broken as the game story — if it weren’t, Jimmy Wales wouldn’t see a surge of traffic to Wikipedia in the wake of any big news event. We need to rethink the basics: If we were starting today, would we do this? But when will we unshackle ourselves from print and really ask the question? And at what point will the answer come too late to matter?

That question “If we were starting today, would we do this?” is one that I think all firms need to ask themselves about a whole range of issues. In this context, I am curious to know whether US firms that have adopted the PSL role have started to define that role from scratch or whether they have adopted the historic UK model without significantly adapting it for changed circumstances.

(If you are interested in reading further into the journalism debate, I would also recommend Jonathan Stray’s article, “Does Journalism Work?”, which examines the ‘why’ of journalism, rather than the ‘how’ that is Jason Fry’s focus. Stray’s piece still has parallels with knowledge support in law firms, but they are much more strained. However, his hypothesis is an interesting one, and I may return to consider the ‘why’ of law firm KM at some point.)