Some thoughts on legal education and practice

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

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

Some personal background (skip if you like)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KM in law firms: rising to a challenge

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

He starts:

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

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

And finishes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where do we find creativity?

My former colleague, Melanie Hatton, was the subject of a Twitter interview a couple of weeks ago. When asked what advice she would give lawyers starting out today, she responded that they should find an unrelated interest in addition to the law, to make themselves stand out. She has elaborated on that answer in a blog post, which draws on the commencement address that Steve Jobs gave at Stanford University in June 2005.

As Melanie summarises it:

Simply put, the more broad your experience and interests, the more opportunities there are in your life to connect the dots and bring a fresh and creative perspective to the table.

Law is no different, and some would argue more in need of creative energy: the best patent attorneys usually have a background in science and chemistry and a passion for photography might fuel a leading copyright lawyer’s quest to represent image right-holders.

I have made a similar point in the past here, and also in a long comment on a post by Jordan Furlong about legal education. But on reflection, I fear I may have overstated the case for breadth of interests.

Steven Johnson (whose book The Invention of Air was one of my fascinating reads of last year) has just published a study of scientific creativity, Where Good Ideas Come From: The Natural History of Innovation. His publisher has created a neat animated summary of the book, embedded below.

In the summary, Johnson says “the great driver of scientific innovation and technological innovation has been the historic increase in connectivity and our ability to reach out and exchange ideas with other people, and to borrow other people’s hunches and combine them with our hunches and turn them into something new.”

This is where the difference lies. The route to insight, creativity, or innovation depends only partly on being personally committed to an open-minded quest for different perspectives. It also requires connection and collaboration with other people. And the balance between the two constantly shifts. For some people, or some problems, the right response is to look at alternative disciplines or ideas. For others, wider connections might be a better answer.

Over the Summer, I read The Strangest Man — a biography of Paul Dirac, who was probably Britain’s least well-known most influential physicist. Dirac was born in Bristol of a Cornish mother and Swiss father. Even allowing for the fact that his father was an overbearing bully, Dirac’s communications with his family were sketchy at best. He would send his mother a postcard every week, but it would usually only refer to the weather in Cambridge. When he won the Nobel Prize in 1933, his parents only found out when they read a report in the newspaper.

By contrast, Dirac clearly engaged deeply with his fellow physicists. He travelled widely and made connections in his own fashion — he tended to listen only as long as he was interested and speak only when he had clear (almost brusque) contributions to make. He was no conversationalist, but he is regarded as a real link between Einstein and Richard Feynman. So he made connections as well as he could, and he also drew on talents beyond theoretical physics. As a boy, he had been educated in a technical school: his perspective on atomic physics was therefore different from many of his contemporaries because he always sought elegantly calculated solutions.

Today’s Financial Times contained its annual survey of innovative lawyers. I don’t make a regular study of this publication, but I was struck this year by the fact that many of the instances of innovation embodied some form of connection or collaboration. It is just the beginning, but perhaps the trend is set for lawyers as it has been for scientists for many years. As Isaac Newton, Dirac’s predecessor as Lucasian Professor of Mathematics, put it: “If I have seen a little further it is by standing on the shoulders of Giants.”

A new leaf for Autumn

After a prolonged period of contemplation (combined with some serious work away from here), I have reassessed and slightly re-focused what I want to do here. Increasingly, I am interested in unpacking what lawyering is, and what the ramifications of that unpacking are. Amongst other questions are the following critical ones:

  • Are lawyers really knowledge workers?
  • If they are, what kind of knowledge workers are they?
  • And what are the implications for those of us who support lawyers and law firms?

Obviously, a lot of this cogitation is triggered by the impending commencement of the Legal Services Act in the UK, as well as by the shift in the balance of power between law firms and their clients as a result of the prolonged recession (amongst other pressures). There are longer-term drivers as well, as exemplified by Richard Susskind’s work.

I don’t expect a lot to change here (although I have taken the opportunity to refresh the design a bit) — my reflections will still be coloured by my own personal interests, and they should also be relevant to non-legal readers too as often as possible. Venerable commentators in this field, such as Bruce McEwen, Jordan Furlong, Ron Friedmann or John Flood can rest easy.

It is probably worth reiterating, for the avoidance of any doubt, that the things I write here are purely my own ramblings. None of my past or present employers are responsible for these thoughts, ideas or fancies. Equally, there may well be times when I am deliberately silent or opaque about my work and that of the firm where I am employed. (And sometimes my silence may have no relation to that — no inferences should be drawn from an absence of comment.)

This is not a place where I write about the day job. But, like many others, I use this blog (together with Twitter and the like) as a place where I can learn and develop my understanding of a wide range of things for my own benefit and (ultimately) that of the firm. Many many thanks to all of you who have joined in that process.

The corporate-professional spectrum: law firms, KM and the future

Last week, I was at a meeting discussing an aspect of learning and development in law firms. One of the speaker’s slides referred to a dichotomy between attitudes within law firms (and some other professional service firms) and big corporations. This probably isn’t particularly insightful for others, but I hadn’t thought about it in the terms he used before, and something clicked for me.

Bear in the Bärengraben, Bern

The essence of the distinction is that the corporation is founded on a stable aim, whereas the professional service firm is more opportunistic, and that this is reflected in the way people work. Within an organisation like Boeing, for example, everyone knows that the company’s aim is to make planes. Everything they do is focused on that aim. In a law firm, by contrast, the nature of the work done (beyond the vague aim of helping clients) depends on the opportunities presented by those clients, the capabilities and interests of the lawyers (in combination with the support available).

As a result, the law firm tends to be more individualistic and pragmatic, where the corporation is hierarchical. People within law firms perceive themselves to be entitled to more autonomy than in the corporation. (As an outsider coming to the firm from a university background, I was completely at home within an environment where everyone considered themselves to be self-employed, whereas a colleague of mine who came from a retail business was quite shocked.)

These are, of course, extreme characterisations, but there is still an element of truth in them. They explain why KM and L&D people (as well as HR people) in law firms find a different set of challenges from their counterparts in commerce and industry. If the purpose of a law firm is emergent rather than pre-ordained, and contingent on the lawyers present in the firm at any given time, where is the value in knowledge continuity or succession planning?

That said, as I suggested in my last blog post, things are going to change in the next few years (and that change will make some of the freer souls feel like the relative of Mary Plain pictured above, in the now-closed bearpits at Bern). Any law firm that hasn’t already got a strategy is going to need one, and adherence to that strategy will become more important than ever — success will depend more on people doing what they are told than it does currently.

That is not to say that the essential nature of law firms will be lost. Law is still a more agile business than the building of aeroplanes — innovation will depend on people successfully following their own creative instincts. They will just have to do that within a more corporate framework. Two blog posts I picked up on today reinforce that quite well.

The first is a note by the always thoughtful Scott Berkun on a long interview with Tim O’Reilly. Scott picks up and re-tells a story Tim tells about an early encounter with an investment banker (Bob):

Bob made a statement that really struck me, and the more I thought about it, the more I saw in it, both to agree and disagree with.

The statement was this: “You don’t fish with strawberries. Even if that’s what you like, fish like worms, so that’s what you use.”

Bob was referring specifically to finding out what the real needs of the potential strategic partners might be, since they might be focussing on something other than what we think is most important about what we have to offer.

That’s really good advice for any sales situation: understand the customer and his or her needs, and make sure that you’re answering those needs. No one could argue with such sound, commonsense advice.

At the same time, a small voice within me said with a mixture of dismay, wonder and dawning delight: “But that’s just what we’ve always done: gone fishing with strawberries. We’ve made a business by offering our customers what we ourselves want. And it’s worked!”

Until now, most law firms have been in the fortunate position of being able to fish with strawberries. Even when they pay lip service to understanding the client, many of them are more interested in comparing themselves with other law firms. As a result, the shape of the legal market has not changed significantly over the past twenty years or so. There is still scope for strawberries, but we need to be better at considering the worms our clients relish (and that requires a discipline that has not often been seen amongst lawyers. A balance is possible, as Scott makes clear:

To only make strawberries makes you an artist. And to only make worms makes you a capitalist. To make both at the same time, or some of one now and then some of the other later, perhaps makes a successful artist. Or an artistic capitalist. Or in Tim’s case, it means you’re having a successful life that has helped people like me make successful lives, and perhaps that’s the best kind of fishing of all: fishing that helps other people learn to fish.

The other blog post is more clearly relevant to law firms. Bruce MacEwen has turned his laser-sight on the competing conceptions of ‘quality’ held by lawyers and their clients.

Clients on Quality Firms on Quality
Often “good enough” is good enough We need to run down every conceivable contingency no matter how remote-and extinguish it with a string cite
80/20 rule 99.99%
Financial metrics, cost-benefit, ROI Professional ethics and intellectual tradition
Business judgment The traditions of excellence in our firm

This is an excellent characterisation of the strawberries/worms dichotomy applied to service delivery. But whilst Bruce is generally keen to support the client perspective, he raises a valid concern.

Here’s my worry:

  • You and your firm agree to a client’s request/demand that a certain matter is only worth “good enough.”
  • You give it good enough-plus 10%, let’s say, just because you can’t help yourself.
  • Case closed.
  • Tick….tick….tick
  • Sometime later, things go seriously south with the matter formerly deemed closed.

Is good enough good enough any more?

And who’s to blame-your firm or the client-for the fact that merely sufficient legal advice has come back to bite?

Actually, you might not want to let your malpractice carrier think about this too long.

So doing things the lawyerly way could be beneficial to the client in the long run. The challenge must surely be to find a way to explain this to clients and to deliver it to a cost that increasingly price-sensitive businesses will tolerate. This is an excellent example of the difficult decisions that will need to be taken by firms, rather than individual lawyers, and where leadership and discipline will need to be exemplary for success.

And, needless to say, there is a role for knowledge management to play — how else will the firm learn from its mistakes and successes?

Knowing together, better

I am a bit of an e-mail hoarder, so occasionally I go back into the store and find an apparently random message that strikes a new chord. So it was when I stumbled across a message from Kaye Vivian to the ActKM mailing list dating back to July 2008. Her e-mail simply drew attention to an article by Richard McDermott on communities of practice (CoPs). More significantly, Richard had listed six characteristics shared by CoPs that successfully matured into dynamic entities (rather than withering away).

Cloister, Canterbury Cathedral

To date, I have not explored the potential benefits of CoPs for knowledge purposes. Within law firms, self-organised or mandated groups are the norm. At one extreme, there is the practice group or client team, and at the other there may be groups of like-minded individuals with a common interest (such as trainee solicitors) who cluster together for support when necessary. Some of these groups work as CoPs by sharing knowledge and learning incidental to their main purpose. Reading Richard McDermott’s article, however, I thought his conclusion probably had wider resonance than just for CoPs.

So what are Richard’s six characteristics? Kaye’s e-mail referred to a post of Stan Garfield’s in which he summarised this part of the article, but Richard actually started by pointing to factors inhibiting flourishing CoPs:

When starting, communities often need to build momentum as they discover what knowledge is useful to share. Once they’ve been going for a few years, three other problems often inhibit communities’ ability to maintain the spark they had during their early years — loss of momentum, loss of attention and localism.

Once these problems are overcome, six factors are evident in successful CoPs:

Not all communities at mid-life suffer these limitations. Some are vital, full of energy and add value to both their members and the company. The most vital of the communities we reviewed shared six characteristics — clear purpose, active leadership, critical mass of engaged members, sense of accomplishment, high management expectations and real time.

Whilst I have no experience with CoPs, I think these characteristics also hold good for successful collaboration of many different types. For example, organisational wiki use works well and adds value when we see the factors manifested in the following ways.

  1. Clear purpose: A wiki which has a defined purpose (creating a resource, for example, or managing a project) flourishes where unfocussed efforts fail.
  2. Active leadership: As Stuart Mader points out in his book, Wikipatterns, a number of key roles have grown up around good wiki use. One of those is the wiki champion: “A passionate, enthusiastic champion is essential to the success of wiki…”
  3. Critical mass of engaged members: Because of the 90:9:1 principle, a significant number of people is necessary to generate valuable wiki contributions.
  4. Sense of accomplishment: One of the advantages of good wikis over traditional CoPs is that as they grow the contributions of members naturally accrete and can provide a real sense of accomplishment. By the same token, if nothing is happening with the wiki people will see it and are unlikely to be encouraged to turn it round.
  5. High management expectations: Whilst many wikis are established as grass-roots activities, they can still benefit from interest being shown by senior people in the organisation. Whilst there is an argument that Enterprise 2.0 might result in less hierarchical organisations, it is still the case that people respond to traditional management and leadership.
  6. Real time: This is where wikis can score over traditional CoPs. Whereas CoPs may require additional time (McDermott refers to one organisation where there was an expectation that 10% of people’s time was dedicated to community activities), wikis can be the place where some aspects of work actually take place (in preference to e-mail, for example). This success factor is probably better worded as real commitment.

And what does success look like? For Richard McDermott, CoPs are successful when they achieve a significant level of influence in the organisation.

But to play this role effectively, communities need to be more than informal discussion groups. They need to be empowered to be full-fledged elements of the organization, legitimately exercising influence without formal authority.

The same is probably true of wikis.

Thinking like a designer?

Over the last week, I have noticed a flurry of blog posts and articles referring to “design thinking.” This may just be a clustering illusion, though — the idea is not new, nor can I see any particular reason why it would surface now more than before. What I read does puzzle me, though.

San Gimignano

Let’s start with what is meant by design thinking.

Compare and contrast: Design Observer, October 2009: “What is Design Thinking Anyway?” and Design Observer, November 2007: “Design Thinking, Muddled Thinking.”

A quote from the latter first:

When the word “critical” is attached to the word “thinking,” the result, “critical thinking,” is a term that has clear, well defined, and well-understood meaning — certainly in the academic community, if not generally. As a counter example, the same cannot, for instance, be said about the term “art thinking.” This is not a term that can be used in any precise or meaningful way. Why? Because it could mean painting or sculpture; it could mean figurative or abstract; it could mean classical or modern or contemporary. Because it embodies so many contradictory notions, it is imprecise to the point of being meaningless — and therefore, completely understandably, it is not much used, if at all.

“Design thinking” is as problematic a term as “art thinking.” Design thinking could refer to architecture, fashion, graphic design, interior design, or product design; it could mean classical or modern or contemporary. It’s imprecise at best and meaningless at worst. More muddled thinking.

But then the more recent article takes a different view:

One popular definition is that design thinking means thinking as a designer would, which is about as circular as a definition can be. More concretely, Tim Brown of IDEO has written that design thinking is “a discipline that uses the designer’s sensibility and methods to match people’s needs with what is technologically feasible and what a viable business strategy can convert into customer value and market opportunity.” [Tim Brown, “Design Thinking” Harvard Business Review, June 2008, p. 86.] A person or organization instilled with that discipline is constantly seeking a fruitful balance between reliability and validity, between art and science, between intuition and analytics, and between exploration and exploitation. The design-thinking organization applies the designer’s most crucial tool to the problems of business. That tool is abductive reasoning.

Then there is this. Having adopted the “design thinking is thinking like a designer” approach, this site (curated by one Nicolae) goes on as follows.

When design is stripped from forming, shaping and styling, there is a process of critical thinking and creative solving at the very core of the profession. By consciously understanding and documenting this process, a new field within the design domain emerges that deals with the creativity DNA of the design mind. When properly understood and harvested, one can transfer the creative DNA from design into virtually any discipline regardless of brain direction. This process has been recognized by thought leaders as an extremely valuable tool for fostering creativity and driving innovation.

However, this is as far as it goes — there is no further analysis of what this “process of critical thinking and creative solving” might be (apart from a meaningless allusion to the left brain-right brain dichotomy, which is a widespread fallacy[1]). So that takes us no further. (I confess that in my original draft, I was much ruder.)

The reference in this week’s Design Observer piece to abductive reasoning takes us a bit further. Here is what wikipedia currently has to say about that, by comparison with better-known forms of reasoning.

Deduction
allows deriving b as a consequence of a. In other words, deduction is the process of deriving the consequences of what is assumed. Given the truth of the assumptions, a valid deduction guarantees the truth of the conclusion. It is true by definition and is independent of sense experience. For example, if it is true (given) that the sum of the angles is 180° in all triangles, and if a certain triangle has angles of 90° and 30°, then it can be deduced that the third angle is 60°.
Induction
allows inferring a entails b from multiple instantiations of a and b at the same time. Induction is the process of inferring probable antecedents as a result of observing multiple consequents. An inductive statement requires empirical evidence for it to be true. For example, the statement ‘it is snowing outside’ is invalid until one looks or goes outside to see whether it is true or not. Induction requires sense experience.
Abduction
allows inferring a as an explanation of b. Because of this, abduction allows the precondition a to be inferred from the consequence b. Deduction and abduction thus differ in the direction in which a rule like “a entails b” is used for inference. As such abduction is formally equivalent to the logical fallacy affirming the consequent or Post hoc ergo propter hoc, because there are multiple possible explanations for b.

At this stage, then, abduction doesn’t look too promising as a means of solving problems. However, it might be attractive as a tool to suggest solutions which can then be tested separately. This is the way I imagine it being used — as an exploratory technique. This is supported by exploring a reference later in the article to Charles Sanders Peirce. His lecture “The First Rule of Logic” is apposite here. Peirce argued that whatever mode of reasoning is chosen, “inquiry of any type… has the vital power of self-correction and of growth.” Following from this, “it may truly be said that there is but one thing needful for learning the truth, and that is a hearty and active desire to learn what is true.” We then come to the heart of his argument.

Upon this first, and in one sense this sole, rule of reason, that in order to learn you must desire to learn and in so desiring not be satisfied with what you already incline to think, there follows one corollary which itself deserves to be inscribed upon the wall of every city of philosophy,

Do not block the way of inquiry.

Although it is better to be methodical in our investigations, and to consider the Economics of Research, yet there is no positive sin against logic in trying any theory which may come into our heads, so long as it is adopted in such a sense as to permit the investigation to go on unimpeded and undiscouraged.

This opens the way to the kind of instinctive, hunch-following process that appears to be presented now as “design thinking.” I am far from sure that such thought processes are unique to designers or, even, more prevalent in that community. Peirce’s suggested open-mindedness in seeking solutions, followed by clear-headed assessment of the merit of those solutions, is a model that many professionals follow, designers or not.

Neil Denny, in a post critiquing some lawyers’ thinking, points to Edward de Bono’s concept of Po. This idea is essentially the same as abduction — thinking of answers that are entirely distinct from the obvious answers in order to reach a new and achievable solutions. As Neil puts it,

Po lifts us out of the normal patterns of thinking. It does not ask “Is this a good idea?” which invites a critical progression of “…And if not, why not.” Instead, po says “Let’s just accept that the following statement, however nonsensical, however illogical is a good idea. Now, what is good about it? What would work or how would it benefit our organisation, or our clients.”

The idea or the suggestion itself is put forward to stimulate the discussion. The idea can be discarded later once it has identified benefits or methodologies.

As Neil indicates, it is the discussion, or the process by which traditional logical tests are applied, where the work really happens. Going back, again, to an old post of mine, James Webb Young’s A Technique for Producing Ideas (chronologically only slightly closer to de Bono than to Peirce) is just another expression of the same basic process.

The process can be distilled into a small set of key points:

  1. Desire to learn, adapt, or create
  2. Always be open to possibilities (however odd they may seem)
  3. Choose potential solutions intuitively and imaginatively
  4. Test the chosen solutions rigorously
  5. Discard failed (and failing) solutions (including the status quo), however attractive they may appear
  6. Learn, adapt or create
  7. Return to the beginning

This is a hard discipline, and it has to be maintained for best results.

Interestingly, if you persist in concentrating on the things you already know and are familiar with, if you avoid opening your eyes to the widest variety of options, you are likely to be persistently unlucky. Richard Wiseman has reached this conclusion after studying luck and luckiness for some years.

[U]nlucky people miss chance opportunities because they are too focused on looking for something else. They go to parties intent on finding their perfect partner and so miss opportunities to make good friends. They look through newspapers determined to find certain types of job advertisements and as a result miss other types of jobs. Lucky people are more relaxed and open, and therefore see what is there rather than just what they are looking for.

My research revealed that lucky people generate good fortune via four basic principles. They are skilled at creating and noticing chance opportunities, make lucky decisions by listening to their intuition, create self-fulfilling prophesies via positive expectations, and adopt a resilient attitude that transforms bad luck into good.

Wiseman’s work is extremely interesting, and worth exploring in more detail. (For those in Manchester at the end of the month there is even an opportunity to hear him speak as part of the Manchester Science Festival.)

It is important, however, not to get too carried away with intuition. When dealing with abstract problems, our brains tend to think in a way that can lead inexorably to error. The clustering illusion that I referred to at the beginning, together with a host of other cognitive errors, can be a real problem when assessing probability and statistics, for example, as Ben Goldacre specialises in showing us. If design thinking just means being supremely imaginative and doggedly intuitive, it is not likely to be a formula for success. If however, it is a shorthand for creative thinking coupled with critical assessment against objective standards (whether those are rules of logic or just client imperatives), then it is undeniably good.

But let’s not allow the designers to think it is their unique preserve.


[1] The reasons why this fallacy persists are beyond my scope here. However, the idea of a clear division is a fallacy. Although the mechanism is not fully understood, the brain almost certainly needs to involve both halves to function properly. Take this statement by Jerre Levy, in “Right Brain, Left Brain: Fact and Fiction,” Psychology Today, May 1985, for example:

The two-brain myth was founded on an erroneous premise: that since each hemisphere was specialized, each must function as an independent brain. But in fact, just the opposite is true. To the extent that regions are differentiated in the brain, they must integrate their activities. Indeed, it is precisely that integration that gives rise to behaviour and mental processes greater than and different from each region’s contribution. Thus, since the central premise of the mythmakers is wrong, so are all the inferences derived from it.

The New Scientist has also covered the issue (only available in full to subscribers, although it is possible to find versions of the article around the internet).


Speaking of social software and KM

Last week, Headshift hosted an “insight event” to showcase the report on social software for law firms written by Penny Edwards and Lee Bryant. I was honoured to be asked to present, along with Sam Dimond of Clifford Chance and Steve Perry of Freshfields.

Nick Holmes wrote a great summary of the event on his blog, Binary Law, and I intended to post the notes for my session here, but Penny has now done a really impressive job of transcribing our three presentations, together with Lee’s opening remarks. I am particularly impressed because she was listening into the event from Amsterdam, and I gather the sound quality was not particularly good.

Penny’s four posts on the Headshift blog are as follows:

As well as the presentations, we had some great questions from the audience and an opportunity for offline social networking. I only wish we could have had longer to discuss all the issues that people raised. Many thanks to Penny for putting the event together, and to Lars Plougmann for hosting it. (By the way, I think the term “insight event” is a really good one.)

Book review: Story: Substance, structure, style, and the principles of screenwriting

I read Robert McKee’s book, Story: Substance, structure, style, and the principles of screenwriting during my holiday last month. It is a fascinating insight into a crucial part of the film-making process, and has helped me understand movie storytelling much better. If that was all it did, I would recommend it wholeheartedly — by shedding light on the mystery of film, it actually enhances one’s enjoyment of the medium, rather than degrading it. If you are at all interested in film, read it — you won’t regret it.

Bee at work

However, McKee’s book raised two distinct issues for me. One is internal to the book and concerns the way in which we do work. The second is an external one — what makes an expert?

Towards the end of the book, having worked through the elements that make up a satisfying story, McKee turns to the actual mechanics of screenwriting. It’s not as simple as starting at the beginning and working your way to the end. This model is described by McKee as writing from the outside in.

The struggling writer tends to have a way of working that goes something like this: He dreams up an idea, noodles on it for a while, then rushes to the keyboard…

He imagines and writes, writes and dreams until he reaches page 120 and stops…

So the struggling writer gathers friends’ reactions and his own thoughts to start the second draft with this strategy: “How can I keep the six scenes that I love and that everyone else loves and somehow pretzel this film through them in a way that’ll work?” With a little thought he’s back at the keyboard…

He imagines and writes, writes and dreams, but all the while he clings like a drowning man to his favorite scenes until a rewrite comes out the other end. …

The writer then does a third draft and a fourth and a fifth but the process is always the same: He clings to his favorite scenes, twisting a new way of telling them in hopes of finding a story that works. Finally … back come reader reports: “Very nicely written, good crisp actable dialogue, vivid scene description, fine attention to detail, the story sucks. PASS ON IT.”

By contrast, writing from the inside out is a much more structured process in which the story stays at the heart.

If, hypothetically and hopefully, a screenplay can be written from first idea to last draft in six months, [successful] writers typically spend the first four of those six months writing on stacks of three-by-five cards: a stack for each act — three, four, perhaps more. On these stacks they create the story’s step-outline.

Essentially, the step-outline is used by the writer to describe a single scene on each card. These cards come and go — a scene may be written and rewritten a dozen times on a dozen different cards. The relationship between the cards — which are key scenes and which promote sub-plots, for example — may change over this time. Finally, when the writer is satisfied that the whole things hangs together properly. At this point, the story can be pitched to someone else.

The writer never shows his step-outline to people because it’s a tool, too cryptic for anyone but the writer to follow. Instead, at this critical stage, he wants to pitch or tell his story so he can see it unfold in time, watch it play on the thoughts and feelings of another human being.

Once the story is seen to work, it is time for the treatment: each scene is expanded into a readable description. That process allows the story to be honed further until it is ready to be turned into a screenplay — dialogue, directions and all.

The wise writer puts off the writing of dialogue for as long as possible because the premature writing of dialogue chokes creativity.

Writing from the outside in — writing dialogue in search of scenes, writing scenes in search of story — is the least creative method.

The description of this process is fascinating. I think there are elements that can be drawn out for wider use in the work that we do. Rather than draft agreements which are then batted back and forth between parties (in much the same way as the screenplay in the “outside in” example), could we envisage the legal documentation of a transaction from the inside out? Perhaps the following key points might be useful.

  1. Why is this deal being done? (In McKee’s screenwriting terms, this might be the “Inciting Incident”)
  2. What are the major points of agreement (and disagreement) between the parties? (Tension between protagonist and antagonist; character and characterisation)
  3. What other issues are at play? Are there any external pressures — time, regulators, etc?
  4. Can the deal (and the answers to the preceding questions) be summarised easily? (The pitch)
  5. Does everyone agree with the pitch? (Develop into a treatment)
  6. Once the treatment is agreed, the documentation (formal contractual provisions) should easily flow from the treatment.

To be honest, I have no idea whether this would work. However, I have seen enough frustration borne of endless argument over the minutiae of legal drafting to be interested in seeing if an alternative would be any better at conveying the commercial meaning of a transaction into legally enforceable wording. Just as dialogue restricts creativity, so does legal drafting. Once a clause is set in Word and becomes the subject of argument, it is difficult for lawyer and client alike to think creatively about alternative ways of achieving the same object, or even whether that object is actually a desired one — consistent with the ‘story’ of the commercial transaction that is being documented.

The other issue that McKee’s work (his book and the seminars that he runs) raises relates to expertise. McKee is an adept critic and analyst of screenwriting, but he is not a great screenwriter himself. His record at the Internet Movie Database indicates that he has written a couple of TV movies and some TV series episodes. Some of the comments on his work suggest that this apparent lack of success undermines his authority on screenwriting. Others use the traditionally snarky riposte “those who can, do; those who can’t, teach.” Both of these reactions miss, I think, the fact that McKee never says “copy me.” Instead, he brings a thorough reading of a range of good and poor films. (In fact, one could be concerned by the fact that he relies excessively on Chinatown for examples, were it not for the impressive list of films referenced in less detail but obviously equally well understood.) Out of that reading, he extracts incredible insight, which should be regarded more highly, not less, for the simplicity with which it is distilled into a set of clearly understood principles.

That, I think is part of the essence of expertise — insight translated into clarity, so that one’s audience can hope to achieve the same insight. That is the opposite of the traditional obfuscation which many experts (many in the field of law, I am sorry to say) typically indulge in.

Another aspect of expertise, which needs to be harnessed in the service of insight and clarity, is passion or enthusiasm for the subject. That passion is clearly evident in McKee’s book. He wants to eradicate poor storytelling in the movies by making the basic element — the screenplay — better. According to the Wikipedia article on him, McKee’s insights are not all especially original. I do not think this necessarily matters — his passion brings them to life more vividly than their originators were able to.

There is clearly more to expertise than just insight and passion, but McKee’s work shows how those elements in combination with even a limited body of material can generate real value.

Storing our future knowledge?

Over the summer, I read a couple of blog posts about knowledge storage that I marked to come back and comment on. Separately, Mary Abraham and Greg Lambert have suggested a fairly traditional approach to selection of key knowledge for storage and later access.

Dover Castle

First, Greg issued a clarion call for selectivity in information storage:

Knowledge Management should not be based on a “cast a wide net” approach to the information that flows in and out of our firms. In fact, most information should be ephemeral in nature; addressing only the specific need of the moment and not be thought of as a permanent addition to the knowledge of the firm. When we try to capture everything, we end up capturing nothing. In the end we end up losing the important pieces of knowledge because they are buried in a mountain of useless data filed under the topic of “CYA”.

I had to Google “CYA”. And thereby hangs a lesson. How can we know when we make a decision about recording the present for posterity that the things we choose will be (a) comprehensible to those who come after us and (b) meet their as yet unknowable needs?

For centuries, the study of history relied on official records and was therefore a story of kings and queens, emperors and presidents, politicians and popes. The things that were left behind — castles, cathedrals, palaces and monuments as well as documents — actually provided us with only slender insight into the real lives of the majority of people who lived at any given point in time. Only when archaeologists and social historians started to untangle more trivial artefacts like potsherds, clay pipes, bone pits and everyday documents like manorial rolls, diaries, or graffiti were we given a more rounded picture of the world of our predecessors. At the time, those things were ephemeral — not created for posterity. The lesson we always forget to learn is that we don’t get to write our history — the future does.

Because Google has access to a vast mass of ephemera, I was able to learn what “CYA” means. In Greg’s context, it is the stuff we think we might need to keep to protect ourselves — it is an information security blanket.

Mary Abraham picked up the thread by addressing the Google question:

Folks who drink the super search kool-aid will say that the cost of saving and searching data is becoming increasingly trivial, so why spend any time at all trying to weed the collection?  Rather, save it all and then try Filtering on the Way Out.  On the other hand, look at the search engine so many of us envy — Google.  It indexes and searches enormous amounts of data, but even Google doesn’t try to do it all.  Google doesn’t tackle the Deep Web.

So why are we trying to do it all?

That’s a good question, and one that Greg challenged as well. I want to come to that, but first the Deep Web issue needs to be dealt with.

As I understand it, the problem for Google is that many useful web resources are stored in ways that exclude it — in databases, behind paywalls, or by using robots.txt files. That may be a problem on the public web, but it shouldn’t be in the enterprise context. By definition, an properly set up enterprise search engine is able to get access to anything that the user can see. If there is material in a subscription service like Westlaw or Lexis Nexis, then searches can be federated so that the result set includes links into those services as well as a firm’s own know-how. Alternatively, a firm or search provider can make special arrangements to index content through a paywall. There simply should not be a Deep Web problem in the enterprise context.

But what of the main issue — by storing too much, we lose our ability to find what is important? I think Greg and Mary are right to challenge the “store everything” model. There is much that is truly ephemeral — the e-mail that simply says “Thanks” or the doodles from that boring meeting. The problem with those, though is not that keep them, but that we created them in the first place. If the meeting was that boring, should the doodler not have gone and done something else instead? Isn’t there a better way of showing appreciation than sending an e-mail (especially if it was a reply-to-all)? I think that is the bit that is broken. Some other things are ephemeral even though they do need to be captured formally. Once an expenses claim has been paid, and the taxman is satisfied, there is little need to keep the claim forms available for searching. (Although there may be other reasons why they should not be discarded completely.)

However, I am still concerned that we cannot know what will be useful in the future, or why it might have a use. At the heart of an organisation like a law firm there are two strands of information/knowledge. The first is a body of technical material. Some of this is universally available (even if not comprehensible) — statutes, cases, codes, textbooks, journal articles: documents created externally that we all have to understand. Some is specific to the firm — standard documents, briefing notes, drafting guides: our internal know-how. I think this is the material that Greg and Mary are concerned with. And they are right that we should be critical about the potential immensity of these resources. Does that new journal article say anything new? Is that textbook worth the space that it takes on our shelves? Is our know-how really unique to us, or is it just a reflection of market practice? These are all crucial questions. However, almost by definition, as soon as we fix this material in some form it is of mainly historical interest — it is dying information. The older it gets, the less value it will have for our practice and our clients.

The other strand is intangible, amorphous, constantly shifting. It is the living knowledge embodied in our people, their relationships with each other and our clients, and their reactions to formal information. That changing body is not just responsible for the knowledge of the firm, but its direction and focus. At any time, it is the people and their connections that actually define the firm and its strategic preoccupations. In particular, what our clients want will drive our future knowledge needs. If we can predict what our future clients commercial concerns and drivers will be, then we can confidently know what we should store, and what to discard. I don’t think I can do that. As a result, we need to retain access to more than might seem useful today.

Patrick Lambe catches this tension neatly in his post “The War Between Awareness and Memory.” I looked at that in my last post (five weeks ago — August really isn’t conducive to blogging). As I was writing this one, I recalled words I last read thirty years ago. This is how John Dos Passos caught the same mood in the closing words of the eponymous prose poem that opens the single volume edition of his great novel U.S.A.

It was not in the long walks through jostling crowds at night that he was less alone, or in the training camp at Allentown, …

but in his mother’s words telling about longago, in his father’s telling about when I was a boy, in the kidding stories of uncles, …

it was in the speech that clung to the ears, the link that tingled in the blood; U.S.A.

U.S.A. is the slice of a continent. U.S.A. is a group of holding companies, some aggregations of trade unions, a set of laws bound in calf, a radio network, a chain of moving picture theatres, a column of stock quotations rubbed out and written in by a Western Union boy on a blackboard, a publiclibrary full of old newspapers and dogeared historybooks with protests scrawled on the margins in pencil. U.S.A. is the world’s greatest rivervalley finged with mountains and hills. U.S.A. is a set of bigmouthed officials with too many bankaccounts. U.S.A. is a lot of men buried in their uniforms at Arlington Cemetery. U.S.A. is the letters at the end of an address when you are away from home.But mostly U.S.A. is the speech of the people.

Sometimes questions about the “laws bound in calf” or “dogeared historybooks” are less important, maybe even a distraction. The real life and future knowledge of the firm is the speech of the people. That cannot be reconstructed. We need to be aware of all the ways in which we can preserve and retain access to it, for use when a client comes up with a new conundrum for us to help them resolve.