Lawyers: architects or bricklayers?

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

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

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

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

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

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

Defining the Millennial organisation

After a night’s sleep, it occurred to me that it might not have been clear what I meant by a “Millennial organisation” in my last post. Here are some thoughts.

We have heard a lot recently about people in Generation Y and how they feel about work. (Here, via David Gurteen, is an example from Teresa Wu that generated spectacular amounts of heat and little light — check some of the trackbacks, especially this rather grumpy one.) What if businesses change in the same way? What would a Generation Y organisation look like? Before suggesting some answers, it is worth briefly summarising why organisations might need to change.

  • Climate change is still with us. It may have been pushed off the front pages, but it is still a reality. It will affect many business models directly, and many more indirectly.
  • The economy is front page news. The collapse of many shared assumptions about growth and prosperity should make us take stock and possibly re-focus.
  • Technology is facilitating many more interesting interactions. 5-10 years ago businesses learnt that they could not survive without at least a brochure-ware website. Now it is becoming essential to identify where and how your market is conducting its conversations online, and join in.
  • People’s expectations are changing. This is not just a Generation Y thing — customers of all generations are challenging their suppliers in ways that were impossible to predict just a short time ago. Employee profiles are also changing — the products of the baby boom are starting to retire in large numbers, potentially leaving a significant gap in the workforce.

That’s a lot of potential for disruption, and there is probably more (I haven’t even touched on globalisation, for example). What will an organisation that deals effectively with all those challenges look like? How might it behave? I can see at least six things, which correspond roughly to the six points made by Teresa Wu.

  • Millennial organisations will support and promote talent, wherever it arises. In doing so, they will need to be able to identify it first.
  • They will take seriously the work started by Ted Levitt in asking the question “what business are you really in?” They will not be afraid to re-invent themselves. (Compare Ford’s and Toyota’s approach to diversification into prefabricated housing, and consider the health of those businesses now.)
  • They will generate a sense of community and common purpose in their people by encouraging them to share and communicate what they know.
  • They will tend to have a flatter hierarchy than traditional organisations, and the leadership will actively involve people from across the organisation in key decision-making processes.
  • They will engage more actively with their clients or customers, in whatever way best suits the client or customer. (Because, as Jordan Furlong makes clear, the market does not care: “You have no right to make money from every problem or opportunity clients face, and the humility that comes from approaching clients that way matters.”)
  • They will encourage their people to bring a sense of commitment to the work that they do, to create better-quality work and a better-quality workplace. This means that badly behaved high-achievers will be tolerated less than they are at present, as will clients who make people’s lives a misery. (Bob Sutton is the guru for this one.)

An organisation with these characteristics will not be frightened of unapproved chaotic information — instead it will recognise the inevitability of the existence of such fragments and seek ways of bringing them to wider attention. It will also be constantly aware of the need to respond to changing markets by changing itself as often as necessary. (I wonder whether this also means that they will have to be smaller in size than they are now.) It probably won’t behave like the firms in Jordan Furlong’s article “The failure of billable-hour compensation“, which describes with alarming clarity “an under-publicized way in which the billable hour poisons the [legal] profession.”

Getting a clue

A little while ago, Doug Cornelius posted a review of Groundswell. At the time, I looked at the book and the authors’ blog;* I wasn’t tempted to buy it, but something looked familiar. When a colleague recommended the book to me today, I took another look and realised where the resonance was: the Cluetrain Manifesto.

I remember when the Cluetrain Manifesto was all the rage. Nine years ago, I was working in a University, and was part of the group trying to plan for or avoid Y2K meltdown. For both those reasons, the significance of the Cluetrain passed me by at the time. Looking back at it recently, it made much more sense, and chimed with some of the things I think we should be doing (as part of KM or otherwise).

I wondered whether the Groundswell editors referred to Cluetrain. I still don’t know if they do so in the book itself, but Josh Bernoff has written a number of related posts in their blog. One of them (“Corporate social technology strategy, Purists, and Corporatists — why companies CAN participate“) is particularly insightful.

On the one side are the folks who say, “The social world is an emergent phenomenon generated by people connecting.” The original Cluetrain Manifesto rails against many aspects of the corporate world and basically posits that the right way for companies to get involved is for people inside those companies to connect to their customers. … For shorthand, let’s call these folks the Purists.

On the other side are companies who are looking at the social Internet and saying “how can we exploit this to do what we already do — PR and advertising, for example?” PR and advertising are mostly one-way, broadcast type communications, and these folks continue to try to adapt those one-way modes of thinking in the two-way, read-write world of social computing. I’ll caricature these folks as the Corporatists.

I’m here to stand up and proudly say, Purists and Corporatists, you’re both wrong.

Josh then goes on to provide reasons why they are both right. Then he gets to the heart of the matter:

As a corporate staffer, you have no business in the groundswell unless you know what you are trying to do there. You could be trying to increase awareness, generate word of mouth, surface leads, save on support costs, on tap into innovation. But regardless, no corporate activity should go forward without a measurable goal, and this is no different.

Looking back at the Cluetrain Manifesto, and at the list of case studies in Groundswell, I wonder what the typical law firm view would be. There is a clear bias in both publications towards examination of relationships between businesses and individual consumers. That is not to say that B2B relationships do not involve individuals, but those relationships are already conducted on a different level (in professional services firms, at least).

The first of the Cluetrain Manifesto’s 95 theses is:

Markets are conversations.

As far as I can tell, professional services cannot be provided effectively without conversations. However, this is often only true at the point of delivery. Looking at law firm newsletters, for example, we might reasonably conclude that firms have no interest in conversing with their clients. Adding that attitude to lawyers’ professional risk aversion, it is not surprising that very few firms have ventured into public engagement with their markets in the way that the authors of the Cluetrain Manifesto or Groundswell might suggest.

—-

* Coincidentally, it is Charlene Li’s last day at Forrester today. I don’t know whether the blog will survive her departure.

Getting better through practice

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

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

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

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

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

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

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

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

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

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

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

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

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

My mate, not yours

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

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

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

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

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

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

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

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

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

Talking to clients — the Nine Inch Nails way

I have one Nine Inch Nails song on my iPod. (And one of their songs sung by another.) I can’t say I am a fan of their music. However, I almost wish I could when I see how fan-focused the band (and their leader, Trent Reznor, in particular) are.

Bob Lefsetz is one of the most enthusiastic, astute and critical observers of the music industry. The Lefsetz Letter (available by e-mail, blog or podcast) is required reading for anyone with an interest in the business. Today Bob’s Letter took a good look at the way that Trent Reznor has grasped the power of the internet to change the way Nine Inch Nails works with the fans.The whole article is worth reading, but for me the following quote holds a message for more than the music industry:

Trent Reznor is Net-savvy. … Almost all of those in charge of the old edifice are not. You’ve got to know how to navigate, how to steal music online, you’ve got to know how the public thinks.

I know Trent does. Because when he e-mails me, it’s always about something on the cutting edge. He’s not referencing a tie-in with Verizon Wireless, he’s talking about the latest P2P site where his audience lives. And if you don’t live in the same world as your audience, you’re headed for marginalization, if not extinction.

This is a good benchmark for anyone who wants to communicate with their clients or customers (whether those are external or internal). Peter Drucker says successful businesses understand their customers, their needs and concerns, but this is more.

“Live in the same world as your audience.”

It’s a hard challenge, but as Trent Reznor has proved in his own market the rewards are potentially massive.