Now and then

A couple of days ago, Patrick Lambe posted a really thoughtful piece considering the implications of heightened awareness from the new generation of social software tools as opposed to the traditional virtues of long-term information storage and access. If you haven’t read it, do so now. (Come back when you have finished.)

Laid down

The essence of Patrick’s piece is that when we focus our attention on the here and now (through Twitter or enterprise micro-blogging, for example), we forget to pay attention to the historically valuable information that has been archived away. This is not a problem with technology. He points to interesting research on academics’ use of electronic resources and their citation patterns.

How would online access influence knowledge discovery and use? One of his hypotheses was that “online provision increases the distinct number of articles cited and decreases the citation concentration for recent articles, but hastens convergence to canonical classics in the more distant past.”

In fact, the opposite effect was observed.

As deeper backfiles became available, more recent articles were referenced; as more articles became available, fewer were cited and citations became more concentrated within fewer articles. These changes likely mean that the shift from browsing in print to searching online facilitates avoidance of older and less relevant literature. Moreover, hyperlinking through an online archive puts experts in touch with consensus about what is the most important prior work—what work is broadly discussed and referenced. … If online researchers can more easily find prevailing opinion, they are more likely to follow it, leading to more citations referencing fewer articles. … By enabling scientists to quickly reach and converge with prevailing opinion, electronic journals hasten scientific consensus. But haste may cost more than the subscription to an online archive: Findings and ideas that do not become consensus quickly will be forgotten quickly.

Now this thinning out of long term memory (and the side effect of instant forgettability for recent work that does not attract fast consensus) is observed here in the relatively slow moving field of scholarly research. But I think there’s already evidence (and Scoble seems to sense this) that exactly the same effects occur when people and organisations in general get too-fast and too-easy access to other people’s views and ideas. It’s a psychosocial thing. We can see this in the fascination with ecologies of attention, from Tom Davenport to Chris Ward to Seth Godin. We can also see it in the poverty of attention that enterprise 2.0 pundits give to long term organisational memory and recordkeeping, in the longer term memory lapses in organisations that I have blogged about here in the past few weeks…

Jack Vinson adds another perspective on this behaviour in a post responding to Patrick’s.

I see another distinction here.  The “newer” technologies are generally about user-engagement and creation, whereas the “slower” methods are more focused on control and management activities much more so than the creation.  Seen in this light, these technologies and processes spring from the situation where writing things down was a time-consuming process.  You wanted to have it right, if you went to that much effort.  Unfortunately, the phrase “Document management is where knowledge goes to die” springs to mind.

In knowledge management, we are trying to combine the interesting knowledge that flows between people in natural conversation as well as the “hard knowledge” of documented and proven ideas and concepts.  KM has shown that technology just can’t do everything (yet?) that humans can do.  As Patrick says, technology has been a huge distraction to knowledge management.

I think Jack’s last comment is essential. What we do is a balance between the current flow and the frozen past. What I find fascinating is that until now we have had few tools to help  us with the flow, whereas the databases, archives, taxonomies and repositories of traditional KM and information management have dominated the field. I think Patrick sounds an important warning bell. We should not ignore it. But our reaction shouldn’t be to reverse away from the interesting opportunities that new technologies offer.

It’s a question (yet again) of focus. Patrick opens his post with a complaint of Robert Scoble’s.

On April 19th, 2009 I asked about Mountain Bikes once on Twitter. Hundreds of people answered on both Twitter and FriendFeed. On Twitter? Try to bundle up all the answers and post them here in my comments. You can’t. They are effectively gone forever. All that knowledge is inaccessible. Yes, the FriendFeed thread remains, but it only contains answers that were done on FriendFeed and in that thread. There were others, but those other answers are now gone and can’t be found.

Yes, Twitter’s policy of deleting old tweets is poor, but even if they archived everything the value of that archive would be minimal. Much of what I see on Twitter is related to the here and now. It is the ideal place to ask the question, “I’m looking at buying a mountain bike. For $1,000 to $1,500 what would you recommend?” That was Scoble’s question, and it is time-bound. Cycle manufacturers change their offering on a seasonal and annual basis. The cost of those cycles also changes regularly. The answer to that question would be different in six months time. Why worry about storing that in an archive?

Knowledge in law firms is a curious blend of the old and the new. Sometimes the law that we deal with dates back hundreds of years. It is often essential to know how a concept has been developed over an extended period by the courts. The answer to the question “what is the current position on limitations of liability in long-term IT contracts?” is a combination of historic research going back to cases from previous centuries and up to the minute insight from last week’s negotiations on a major outsourcing project for a client. It is a real combination of archived information and current knowledge. We have databases and law books to help us with the archived information. What we have been lacking up until recently is an effective way of making sure that everyone has access to the current thinking. As firms become bigger and more scattered (across the globe, in some cases) making people aware of what is happening across the firm has become increasingly difficult.

Patrick’s conclusion is characteristically well expressed.

So while at the level of technology adoption and use, there is evidence that a rush toward the fast and easy end of the spectrum places heavy stresses on collective memory and reflection, at the same time, interstitial knowledge can also maintain and connect the knowledge that makes up memory. Bipolarity simply doesn’t work. We have to figure out how to see and manage our tools and our activities to satisfy a balance of knowledge needs across the entire spectrum, and take a debate about technology and turn it into a dialogue about practices. We need to return balance to the force.

That balance must be at the heart of all that we do. And the point of balance will depend very much on the demands of our businesses as well as our interest in shiny new toys. Patrick is right to draw our attention to the risks attendant on current awareness, but memory isn’t necessarily all it is cracked up to be. We should apply the same critical eye to everything that comes before us — how does this information (or class of information) help me with the problems that I need to solve? The answer will depend heavily on your organisational needs.

Making time

One of the things that can prevent us from getting things done is time, and how we manage it. Even without anyone else’s help (or hindrance), the average worker has to deal with procrastination and thinker’s block.

Montepulciano

When those challenges are added to the need to work with colleagues and clients in a managed environment, things can get even more difficult. It is easy to get carried with the flow of life and work without really thinking about how best to use one’s time. Clients have demands to which lawyers are keen to respond, and most firms have financial imperatives that require particular approaches to work management. One consequence is that it can be hard to find time to do other things. In fact, in many organisations, this is intended. Tony Quinlan highlights the problem:

The drive for efficiency and perfect accounting for time is a constant anachronism — and far too much attention goes there, with added implications that activities like lunchbreaks and socialising were wasting time or somehow detrimental to the organisation. It’s often the implication that a work contract indicates a straight exchange of salary for workhours, and that any hours used at work for non-efficient work purposes is time stolen from the organisation. A very dangerous mindset to get into — and one that I’ve challenged more than a few times at conferences (typically, someone talking about email and spam and how many hours can be saved, with a spurious figure of what that means on the bottom line. Spare me.)

The contractual exchange of time for money is absolutely explicit in a law firm, where fee-earners record time in six-minute blocks, which then get converted into bills for clients. (I know many firms are moving away from the extreme version of that model, but very few of them have actually done away with the need to record time.) This can have a corrosive effect on any activities (including knowledge sharing) that are not “fee-earning” or which make it harder to reach time-related targets. Tony goes on to recall life in a more relaxed working environment.

I remember the tea trolley at Racal, back in the 1980s when I was testing radar systems.  It was actually a very useful social space — a specified point in the day when a bunch of people from different areas and specialisms met and talked as we waited to buy anything that I’d probably not allow my children to have today.

There’s a serious denigration of such social spaces these days, usually on efficiency or bottom-line grounds but (as in the case of smoking rooms) health ones too.  The value was in building cross-functional networks and communication channels and talking in non-formal environments.  And non-policed too, which made them more powerful for sharing problems or warnings of potential future issues.

Like Tony, I think the social aspect of work is crucial. If we make it harder for people to interact casually, we lose a real opportunity for creativity, change and insight. Gossip (of the non-malicious kind) almost always conveys more useful and actionable information than the formal corporate communications channels. (We need those too.)

[I]f the smoking room, the tea trolley, the staff canteen (and lunch hour) are all disappearing, where do we meet other parts of the organisation except in meetings?

A good question, Tony, and one which would frighten many people.

Do we have too many meetings? Possibly, and they may well be poorly focused as well. However, Paul Graham puts his finger on a more subtle issue. Different people are affected by meetings in different ways.

One reason programmers dislike meetings so much is that they’re on a different type of schedule from other people. Meetings cost them more.

There are two types of schedule, which I’ll call the manager’s schedule and the maker’s schedule. The manager’s schedule is for bosses. It’s embodied in the traditional appointment book, with each day cut into one hour intervals. You can block off several hours for a single task if you need to, but by default you change what you’re doing every hour.

When you use time that way, it’s merely a practical problem to meet with someone. Find an open slot in your schedule, book them, and you’re done.

Most powerful people are on the manager’s schedule. It’s the schedule of command. But there’s another way of using time that’s common among people who make things, like programmers and writers. They generally prefer to use time in units of half a day at least. You can’t write or program well in units of an hour. That’s barely enough time to get started.

When you’re operating on the maker’s schedule, meetings are a disaster. A single meeting can blow a whole afternoon, by breaking it into two pieces each too small to do anything hard in. Plus you have to remember to go to the meeting. That’s no problem for someone on the manager’s schedule. There’s always something coming on the next hour; the only question is what. But when someone on the maker’s schedule has a meeting, they have to think about it.

Where do lawyers fit into this model? Are they makers or managers? And clients — where do they fit? I don’t think there is a simple answer. However, it is a question we should always ask. Will this meeting that feels innocuous to me actually disrupt another person’s day to such an extent that they feel unable to spare the time to do something that might deliver more value instead (like chatting to someone as they make a cup of coffee)? Or, alternatively, is this meeting actually the time when something critical gets done — like finding out from a client exactly what their commercial objectives are?

Who are you looking at?

Something puzzles me. Why do law firms find it so hard to ignore their competitors? More than that, why do some firms (US ones, typically, I think) dedicate significant resources to finding out as much as they can about other law firms? Is this a lawyer thing or is it more widespread?

Canal boats, Pontcysyllte

The questions come up because I have seen a flurry of interest in Competitive Intelligence in a number of places.

It started with Emma Wood, reporting in Steve Matthews’s blog on a CI session at SLA 2009. The whole thing was a bit new to Emma as well.

Coming from the relatively small Canadian legal market, I was fascinated to hear about the competitive nature of major law firms in United States. I described it afterwards to a friend as it almost being like the rivalry between McDonalds and Burger King. I knew that the American legal industry was bigger and different from ours, but I didn’t realise just how fierce the competition between major law firms is.

So what do these firms get by way of information about their competitors?

McAllister created a newsletter that captures information in seven categories: mergers & acquisitions; office openings/closings; lawyer moves; law firm management trends; finances, fees, bonuses, salaries; the firm in the news; and special reports such as AmLaw 100, etc.

What puzzles me is the result of all this information. In my previous incarnation as a competition lawyer, I was very conscious that the competition authorities were often particularly interested in markets with high levels of transparency (especially with regard to pricing, which I assume is not relevant here). The reason for this interest is that the authorities consider that transparency can often lead to a reduction in pricing and product differentiation between companies where there is a degree of concentration. (For an economics view of the question, see this paper.)

Aside from this, I feel instinctively that a business that focuses as much effort as Emma describes on learning about its competitors is probably looking in the wrong direction. Surely it would be more sensible to concentrate on what clients need, on the directions their businesses are heading, and on more general economic and market trends (outside the legal sector).

Another guest blogger, Laura Walters on the 3 Geeks… blog provides a worked example of CI in action for a law firm, using LinkedIn (originally written by Shannon Sankstone).

A quick search for a well-known law firm listed one of their attorneys as the top result. Although Mr. Lawyer made his connections private, he did not shy away from requesting recommendations. He lists over 40 recommendations, 26 of which are from clients. Some of these clients are (names have been withheld, but are available on Mr. Lawyer’s profile):

  • A publicly listed hotel and resort corporation;
  • A large biotech company; and
  • A private equity firm.

At first glance, the CI pro now knows at least 20 of Mr. Lawyer’s clients (some clients had more than one person recommending Mr. Lawyer). Were a firm considering approaching Mr. Lawyer as a lateral hire, they would include this information, and an analysis of the clients, to determine if Mr. Lawyer’s client base was in line with the firm’s business development goals.

If, on the other hand, a firm was competing with Mr. Lawyer’s firm for work from a company in the hotel industry, then Mr. Lawyer’s recommendations might be leveraged to the CI pro’s firm’s advantage. While Mr. Lawyer may point to his recommendations as proof that he has delighted clients in this industry, the competing firm may highlight this as Mr. Lawyer having a better relationship with a competitor company.

If I were a client, I think I would be more impressed by a firm that highlighted the real benefits of instructing them, rather than raising allegations of conflicts of interest with my existing lawyers. The latter argument tells me nothing about (a) why I should change lawyers at all, or (b) why the pitching firm should get my business. In short, I am not sure that I would be especially impressed by even an implied impugning of my choice of lawyer. This kind of comparative advertising sits poorly in a profession that sets great store by the creation of genuine working trust-based relationships.

Any business that concentrates its efforts on working out what its competitors are doing makes it very difficult to generate new ideas, to find points of difference that appeal to clients or customers. This is the point of “differentiation” — a goal of most businesses. Any organisation can do things differently (although that can be hard too). Real value only comes when those different things (whether they be core legal services, or a way of working) actually resonate with clients — there is real differentiation from competitors. However, an understanding of what will differentiate the firm cannot come from an examination of what one’s competitors do — that can only result in painting the same products in different colours. As this summary shows (drawing on this HBR article), the questions to be asked all focus on the client.

  1. Have you researched your clients’ requirements and preferences?
  2. Do you know what the points of parity or hygiene factors are?
  3. Do you know what the motivation factors are?
  4. Do you understand, from the client’s perspective, what the relevant importance of each of the motivation factors are?
  5. Can you substantiate how your offering creates value for your clients?
  6. Can you deliver a resonating CVP – one that really appeals to the client’s key motivation factors?

Unfortunately, the lack of differentiation that comes from examining competitors rather than clients is extremely visible to outsiders. We should not fool ourselves that it is not. Eric Karjaluoto recently gave a splendid example of how obvious this failure to understand differentiation can be.

A few weeks ago we met with a company that was having exactly this problem. They’re a respectable law firm whose website just didn’t seem to be doing what it needed to. They particularly liked a website that we had crafted for another firm, and decided that they should get in touch with us.

The meeting went swimmingly. They were all pleasant and had a lovely office space. They explained to us that they were quite different from other law firms, and that while others were rather boring and stodgy, they are in fact much younger, more progressive, and “out of the box” thinkers*. They didn’t think this came across in their current materials, and were highly dissatisfied with their existing website. They felt that if we built a site for them like the one we built for their competitor, it would remedy this problem.

*Incidentally, Almost every law firm we’ve met with has told us exactly the same thing. I have yet to encounter the law firm that claims to be “boring and stodgy”.

Unfortunately for Erik, the engagement didn’t work out, but he is at least able to draw a wider conclusion from the firm’s behaviour.

Although I’m talking about one specific operation, my point applies to many. In our (nearly ten) years in business, we’ve spoken with a lot of people. Almost all face similar challenges, and they typically lack one of two requirements needed to remedy the situation and spur change. The first and most important is a willingness to differentiate; the second is the allocation of appropriate funds, in order to make this happen.

The law firm in question knew their problem–they came off as “beige” and boring like everyone else. They then looked to all of their competitors and decided to copy the site that they liked most. While I understand what leads to this, it’s a rather perverse notion: “Let’s differentiate our firm by copying the one that we like the most.” (Riiiiight.) They wanted the result without the price–a price which is both monetary and psychological in nature. In order to actually stand out from their competitors, they’d have to find a story of their own to share. With this does come some small amount of risk; it also brings with it the opportunity to create something powerful.

You don’t differentiate by copying the most attractive brand you can find. (If we did, KFC would be marketed like Louis Vuitton, and that would be sort of weird, wouldn’t it?) No, you have to isolate that which is uniquely yours and amplify it compellingly. You need a story that’s plausible (and one that people want to hear) and then you need to share it effectively. Not doing so leads to what one might consider the marketing “doom loop”, in which new campaigns are crafted and deployed haphazardly–destined for failure before they’re even out of the gates.
Although I’m talking about one specific operation, my point applies to many. In our (nearly ten) years in business, we’ve spoken with a lot of people. Almost all face similar challenges, and they typically lack one of two requirements needed to remedy the situation and spur change. The first and most important is a willingness to differentiate; the second is the allocation of appropriate funds, in order to make this happen.

The law firm in question knew their problem–they came off as “beige” and boring like everyone else. They then looked to all of their competitors and decided to copy the site that they liked most. While I understand what leads to this, it’s a rather perverse notion: “Let’s differentiate our firm by copying the one that we like the most.” (Riiiiight.) They wanted the result without the price–a price which is both monetary and psychological in nature. In order to actually stand out from their competitors, they’d have to find a story of their own to share. With this does come some small amount of risk; it also brings with it the opportunity to create something powerful.

You don’t differentiate by copying the most attractive brand you can find. (If we did, KFC would be marketed like Louis Vuitton, and that would be sort of weird, wouldn’t it?) No, you have to isolate that which is uniquely yours and amplify it compellingly. You need a story that’s plausible (and one that people want to hear) and then you need to share it effectively. Not doing so leads to what one might consider the marketing “doom loop”, in which new campaigns are crafted and deployed haphazardly–destined for failure before they’re even out of the gates.

I can see that there is a natural inclination to compare ourselves with the neighbours, but that is not a useful long-term strategy. It leads one down avenues that do not fit our real preferences, or into courses of action that lead to social, emotional or real bankruptcy.

Our competitors do not have the key to improving our businesses, but our clients do. I think we should look (and listen) to the right people, and spurn the siren voices.

Learning from experience?

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

Winery

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

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

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

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

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

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

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

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

Still focused on:

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

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

Focus shifts to:

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

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

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

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

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

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

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

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

Direction-finding

Yet again, Mary Abraham has hit the target. In a blog post earlier in the week, “Off-Route, Recalculate”, she uses satellite navigation as a metaphor for planning KM activities.

As we plan and carry out our knowledge management efforts, it can be difficult to identify the correct route.  And, it can be unpleasant to be informed that we’re off-route and need to recalculate.  Many of us have taken the current economic situation as a call to recalculate our routes.  Unfortunately, given the extent of the economic turmoil, it can be hard to identify our alternatives and most of us are all too conscious of the pressure on us to get the route right.  Further, few of us have knowledge management GPS.  So what should we do?

I was intrigued by the GPS system that Mary described at the beginning of her post. It sounded very bossy, and not at all like the one in my own car. As I put it in a comment on Mary’s blog (the “she” described is the voice of the satnav system):

For me, she is very good at applying all the information that she has (and I don’t) about the road network (and some other points of interest) to help me get to the destination I specify. Occasionally I make a detour along the agreed route, but she is very amenable to finding a new way to get to the final destination. She also has an array of different ways to show the key information that I need, but she doesn’t force me to choose any particular one of them (I can even see two different views at once if I want). Ultimately, her goal and mine are the same — to reach the specified destination. Otherwise, she is happy to respect the decisions I make about the position of the steering wheel.

Sometimes, I need to change the intended destination. That is easily done, and all previous instructions are put aside without rancour. Her role, after all, is to support me in achieving my objectives.

Mary responded, “It sounds like your GPS ‘person’ is a bit more competent than the one I met in my friend’s car last weekend. After being presented with several unattractive route alternatives during the trip, my friend actually turned her GPS off in frustration.”

This conversation made me think about extending the metaphor in a slightly different direction. As lawyers, we can be compared to navigation assistance for clients. They are the ones who specify the ultimate destination, and lawyers (together with other advisors) suggest different routes to get there, and keep things on track if diversions are made (whether those diversions are necessary or frivolous). Within law firms, those supporting KM and other internal activities need to adopt a similar role. Admittedly, our advisory role can be very different from that of a GPS system — we can influence the decision about the destination itself as well as the route taken to get there — but ultimately we have to respect the client’s choice of destination. This means that our advice should not be tainted by regret that a different destination was not chosen or that the business prefers to use back-roads rather than pay the tolls on the autostrade.

Like all metaphors, this one shouldn’t be pushed too far, but at its heart I think there is an element of truth. It is also worth remembering when you find yourself in the position of being a client. To what extent are you being led to a destination that isn’t quite where you wanted to be, or taken along a route that is not really the way you wanted to go?

A glimpse into the abyss

John Flood has published on his blog an article he co-wrote for The Lawyer. It is essentially a challenge to the traditional UK law-firm business model.

The context for the challenge is clearly the current economic crisis, coupled with the opportunities offered for different organisational structures by the Legal Services Act. In essence the suggestion is that law firms should stop ‘owning’ their stock (lawyers) and instead lease it as and when client demands dictate.

Although legal work has become more commoditised and an increasing proportion of it shipped offshore, it is perhaps lawyers themselves, both associates and partners, who are the commodities, traded and marketed by recruiters and head-hunters. New service models such as Axiom Legal, Rimon Law and Lawyers Direct are flourishing. One recruiter is now even advertising ‘pay as you go lawyers’. At the same time, the equity partnership prize is becoming ever harder to win, and even less sought after by today’s younger lawyers who are more mobile and happier than ever to migrate to newer opportunities.

Since a sufficiently large pool of high-quality and experienced lawyers is emerging from the crisis, why not rent lawyers for a specific period or task and then let them go again? The advantage of temporary resources is that they can be deployed as and when needed and released when not.

What would be the purpose of the firm in this model?

A smaller, tighter front-line team would oversee client relationships, supervise the work and manage the firm. Rather than constantly seeking merger partners, law firms could structure their growth in a more organic fashion which would build collegiality as well as returns.

I am not sure what this would look like. I think there are two (potentially competing) reasons why law firms are organised as they are. The first is that the current model has served private practice lawyers well so far. That is not to say that this will remain true. John Flood and his co-author, Peter Rouse, chief executive of 7 Bedford Row Chambers, have started to make a compelling case for change from this perspective. However, the current model has also grown up in response to client needs. It is at least arguable that clients play some part in designing law firms. There is compelling evidence (see Ron Friedmann and others, passim) that client pressure will define the law firm model to a much greater extent in years to come. The Flood/Rouse model may serve clients well, but it is not clear from the article how or why clients would prefer this approach to one of the many others on offer.

As they are currently organised, law firms can and should offer clients the security that individual lawyers are well-trained and -briefed so that they can apply more than basic legal knowledge. That is one of the functions of firms’ KM activities. How would that be replicated in a firm using the Flood/Rouse model? There is a real risk that clients would get little benefit from this approach. Yes, firms might find that their costs are lower and that this might translate into lower hourly rates (assuming that the billable hour still holds sway), but a poorly-briefed contract lawyer could take much longer to perform the tasks required to the standard required by the client. As a result, the client would see no financial benefit, and might even discern a distinct difference in the quality of the work done.

That is not to say that we should dismiss this approach. No organisation can assume that it will be allowed to remain in its current form forever. Likewise, those of us who work in a particular way because of the form of the organisation we support should also be mindful that change is inevitable and be constantly seeking ways of ensuring that the service we provide is still hitting the mark for our people and our clients.

If the Flood/Rouse model were pervasive, what would law firm KM and training look like?

Where do lawyers come from…?

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

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

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

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

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

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

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

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

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

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

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

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

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

“But I haven’t paid you yet.”

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

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

And so on.

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

White space, thinking, speaking, doing

Compare these two images.

Despite the fact that the left-hand advertisement proclaims its message in bolder and larger text than the right-hand one, I think the right-hand one has a greater impact. However, in some contexts an advertisement like the one on the left would be entirely appropriate. The image, and the insight, are taken from an interesting article by Mark Boulton at A List Apart on the use of whitespace in design.

The content is the same on both designs, as are the other elements, such as photography. Yet the two designs stand at opposite ends of the brand spectrum. Less whitespace = cheap; more whitespace = luxury.

A lot more goes into brand positioning than just whitespace, but as a brief lands on your desk for a luxury brand, it’s very likely that the client—and their target audience—expects whitespace and plenty of it to align the product with its competitors.

It is clear from the article that a key part of the designer’s job is as much judging how much to leave out as deciding what to put in. I think there is something there for lawyers to learn too.

It is difficult for someone with clearly defined skills, tasks and tools to hold back from doing what they do. A blacksmith with a hammer and an anvil needs to use them quickly and effectively. Too much time spent pondering where to strike the hot iron is not time well-spent. Likewise, a lumberjack shouldn’t pause mid-way through felling a tree. On the other hand, good craftsmen will plan their work carefully — “measure twice, cut once” is not a meaningless mantra — and so wielding the appropriate tool is not usually the first thing that they do. Sometimes I think this is not a discipline that comes easily to professional services advisors.

When a client comes to us with a problem, our natural inclination is to flex our muscles. “I see what your problem is; I’ll draft this document and we can start clearing things up…” Because of the tyranny of the billable hour (a topic best dealt with elsewhere), we need to show that we are solving problems with recorded time and demonstrable outputs (documents, meetings, e-mails, phone calls). Often, however, the client is not interested in those things — their focus is on the outcome, not the output.

A little while ago, Bruce MacEwen asked “Are you beginning to get the same creepy feeling I am, that large organizations discourage deep or creative thinking?” This question was prompted in part by a discussion piece on Harvard Business School’s Working Knowledge site: “Why Don’t Managers Think Deeply?” That piece starts thus:

A since deceased, highly-regarded fellow faculty member, Anthony (Tony) Athos, occasionally sat on a bench on a nice day at the Harvard Business School, apparently staring off into space. When asked what he was doing, ever the iconoclast, he would say, “Nothing.” His colleagues, trained to admire and teach action, would walk away shaking their heads and asking each other, “Is he alright?” It is perhaps no coincidence that Tony often came up with some of the most profound insights at faculty meetings and informal gatherings.

I sense that, especially now, the opportunities for creatively doing “nothing” are very limited in law firms and similar organisations. Unfortunately, now is the very time in which we need profundity in our thinking. Our leaders need that space in which to ponder things, so that they can lead us out of the current mess. At any time, when working with clients, we can only produce a better quality outcome by cogitating before drafting. The white space in a magazine layout does not take away from the words on the page — it enhances them. In a similar way, the time we spend thinking about what to do, or write, or say, the better those deed or words are likely to be.

There is another school of thought, exemplified by a light-hearted essay by Heinrich von Kleist: “Über die allmähliche Verfertigung der Gedanken beim Reden” (“On the gradual formation of thoughts while speaking“). It can be read as a carefully thought-out manifesto for blogging.

My dear thoughtful friend: if there is something you want to know without being able to find it out through meditation, turn to any acquaintance you run into to talk about the matter. There is no need for him to be a sharp mind. Also, I do not mean to say that you should ask him about this matter: Oh no, never! Rather, you should tell him the solution yourself. I can see you making big eyes and telling me that you have been advised earlier to speak of nothing except of what you understand. But at that time you may have had the mad ambition to instruct others. but I want you to tell him so you instruct yourself!

The French say l’appétit vient en mangeant, and this empirical maxim remains true if one makes a parody of it and says l’idée vient en parlant.

Often I sit over my papers and I try to find out from what angle a given conflict has to be judged. Usually, I look into the light, as the brightest spot I can find, as I try to enlighten my inner being. Or else I seek out the first approach, the first equation which expresses the obtaining relations, and from which the solution may be derived simply through plain arithmetic. And look what happens: as soon as I talk to my sister — who is sitting and working behind me — about this matter, I realise what hours of hard thinking have not been able to make clear to me. It isn’t as if she was was telling me in any direct sense. She does not know the law, and has never studied her Euler and her Kästner. Neither is that what she leads me to the crucial point through deft questions — although this latter case may occasionally occur. But since I have some vague thoughts that are in some way connected with what I am looking for, then once I have embarked on the formulation of the thought it is as if the need to lead what has been begun to some conclusion transforms my hazy imaginations into complete clarity in such a way that my insight is completed together with my rambling sentence.

I don’t think Kleist is proposing a different approach to the pursuit of white space in our work. Rather, he is suggesting a way of dealing with the inevitable consequence of thinking: thoughts. When we ponder, we may generate many possible solutions to problems. We are then faced with the difficult task of gauging which of those solutions is the best. Alternatively, some of our thoughts may be more fully-formed than others, and we need to guard against them — the inchoate ideas may actually be the better ones. If we do as Kleist advises, we can start to see how things fit together or how they might be flawed. For me (and for others, I suspect) this is one of the benefits of blogging. It helps me sort things out in my own mind, even if nobody else takes notice. (But many thanks to those of you who do, of course.) It works in other contexts as well. In the programming context Scott Ruthfield says: “when you’re stuck, write it down.”

Say you’re trying to figure out how to do something in [pick a framework], and you’ve Googled the heck out of the most-likely search terms, and nothing’s coming up.

Then write down your question as if you were going to ask a teacher/email it to a friend/post to a Google group/etc. Write down all the details: explain the thing you’re trying to do, the problem you have, and the number of things you’ve tried. Be as clear as you can, but don’t worry about being concise.

Literally every single time I’ve ever done this – and my rule-of-thumb is to do it after ~1.5 days worth of trying to figure it out myself – I find a number of new avenues to try, and almost always solve the problem on my own.

Putting these elements together, we can see that effective use of white space in our work comes when we combine thinking time with active reflection through the recording of ideas, questions, thoughts, half-baked conclusions. That will allow us to see what we know that will help the client achieve the outcome they want (or identify the gaps that can be filled by others). As a result, this approach will produce a better-quality product — as we saw at the outset, that is one of the consequences of carefully-used white space. Doing without thinking leads to the kind of cluttered, shouty, low-quality output that is exemplified by the first picture at the top of this post.

(Scott Berkun adds another benefit to writing without thinking too much about the output. It can break through a blockage. “The secret, if you can’t start, is to begin without constraints. Deliberately write badly, but write.” That is a different issue from the one I have touched on here, albeit similarly challenging.)

Cooking the books

One of the longest-established forms of knowledge activity in law firms is the creation and maintenance of standard or precedent documents. These usually cover the core activities of the firm, and allow lawyers to create the first drafts of client documents in much less time and (assuming they have been well-drafted in the first place) to a higher and more consistent standard than if they were to start with a blank sheet, or a fully-negotiated agreement from an earlier transaction.

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When I spoke on Web 2.0 and KM at a conference last November, I likened a law firm’s precedent collection to the domestic KM system represented by a set of recipe books. We tend to collect recipes for dishes that we already like or that look interesting on the page. Whether we use the books religiously or not depends on a number of things:

  • How confident we are as cooks
  • Whether we cook according to what is in the cupboard, or shop to fit a recipe
  • How important it is to get something right (on a big occasion, for example)

In the picture above, one of the books is so well-used that it has lost its spine. That is our copy of the book known generally (and affectionately) in British households as “Delia”: the Complete Cookery Course, by Delia Smith. On the Learning to Fly mailing list this week, “Delia” was suggested as an example of a knowledge asset (defined as “a compilation of know-how, packaged in such a way as to provide valuable reference material that others can translate into tacit knowledge”).

There was some disagreement about this — perhaps it is a better example of an information asset. For me, it was a reminder of a comment of Dave Snowden’s, comparing a mere user of recipe books with a true chef:

There is a huge difference between a chef and a user of recipe books. The recipe book user (for which read the manufacturing model of consultancy) uses best practice to assemble the same ingredients in the same context to produce the same meal, time and time again. If they come into your kitchen, it will have to be re-engineered to confirm with the requirements of the recipe before they start to work (and you will pay in many ways for that). The Chef in contrast can work with whatever ingredients and utensils you happen to have to hand and create a great meal.

In my presentation, I contrasted the traditional precedent/recipe book KM approach with the use of Web 2.0 tools to expose knowledge that the firm did not know it had or to create knowledge from interactions that would be impossible to create otherwise. I think this model is closer to Dave Snowden’s chef, in that it makes the most of what is in the cupboard. For a law firm, this approach means that it is possible to be more adaptable to what clients need, to changes in legal or market practice, or to the economy.

But… The chef needs to start somewhere. Recipes are necessary. We just need to be careful. As Matthew Fort put it:

Just as we have delegated most of our food decision-making to supermarkets so we have bowed our heads to the recipe. We can’t get through cooking life without them. We’ve come to treat recipes like crutches, to help us limp through the process of cooking a dish, rather relying on our own experience and judgement.

Nigel Slater is right when he writes in his introduction to February’s Observer Food Monthly that the purpose of a recipe is to instil confidence, to inspire and allow ideas to be shared.

A view of recipes as inviolate is totally erroneous, they are not the culinary equivalent of chemical formulae. Tamper with the ingredients or the proportions and you tamper with the something precise and ordered. Who knows what chaos and disaster lies the other side of leaving out the celery?

It’s bollocks, of course. You’re just cooking something a little different. It’s not going to alter the course of the universe or cause disgrace at the dinner table.

The same can be said of precedents. They contain the essential ingredients to ensure that a basic agreement is sound, but a confident lawyer will have learnt over time what can be added and what left out to make the final product just what the client ordered. There are many ways of building that confidence. Experience, sound basic documents, mentoring, coaching, insights provided by colleagues through training and by intelligent use of blogs and wikis: these and others are all important tools in the development of confident, inspired, idea-sharing and creative lawyers.

That is why all of these are fundamental to KM in law firms. Our job is to blend the ingredients in just the right way to meet the needs of our clients, their markets, our lawyers, and the firm. This will inevitably be a constantly-changing recipe — the basic elements are all themselves changing.

Challenging the orthodoxy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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