Finding different influences

When I was doing my research degree, I was regularly distracted by the many other interesting books in the library. Amongst those, I kept coming back to Robert Merton’s On the Shoulders of Giants. As the publisher’s blurb puts it:

Robert Merton traces the origin of Newton’s aphorism, “If I have seen farther, it is by standing on the shoulders of giants.” Using as a model the discursive and digressive style of Sterne’s Tristram Shandy, Merton presents a whimsical yet scholarly work which deals with the questions of creativity, tradition, plagiarism, the transmission of knowledge, and the concept of progress.

Although I remember little of the detail of the book, its themes (the collective nature of intellectual progress and the forms that imitation takes during that progress) still resonate. As the New York Times put it:

The book really does address itself to the problem of priority, and to the related questions of creativity, tradition, plagiarism, the transmission of knowledge, the social conditioning of science. It forces you to think hard about the notion of progress, and about why there should ever be anything new under the sun. Its very perversity is meant to illustrate the role played by contingency and accident (to say nothing of obstinacy and incompetence) in the history of ideas.

The modern equivalent of Newton’s aphorism is the quote popularised by Steve Jobs:

Good artists copy; great artists steal.

This isn’t intended as a licence to plagiarise. The allusion to theft, I think, is a reference to audacity. Taking an idea and transforming it into something bold is what Jobs (prompted by Picasso) had in mind. Interestingly, an investigation of the genesis of the phrase suggests that it was originally phrased very differently.

Loch Ossian through the treesImitation is an accepted part of progress. But how do we decide who to imitate? I think that is where great artists distinguish themselves. Their audacity isn’t just marked by the result of their copying, but also shows in what they choose to copy.

A long time ago, I railed against the tendency of law firms to compare themselves to each other. Little has changed in the intervening six years. And yet there are so many great things to imitate.

This post was prompted by a brief look at the website of a Scottish architectural practice, Page\Park. There are many similarities between law and architecture. Both apply expertise and experience to a client brief in order to create something. And yet few law firms look to architectural practices for ideas about how they might work. There are a couple of things that Page\Park do that are worthy of consideration for imitation. (I have no idea whether they are novel to that practice or common in the architectural world.)

Business model

It is unusual, and perhaps egocentric, for a firm’s website to describe the business model it has chosen. When that model (a) is different from the norm and (b) has benefits for the client, such egocentricity can be forgiven. Page\Park is an employee owned business, which is presented as a good thing for clients:

In so many fields of life the paramount role of the team, with each contribution being vital, has challenged traditional hierarchical models of management and, in our view, ownership. If society demands that each of us take responsibility for our roles, then surely ownership should respond likewise. So now, when you speak to anyone in Page\Park, you are speaking to someone with a share in the future of the practice, a belief in its values and a commitment to them.

More than that, the firm goes on to describe in detail how it works. This might be a step too far for a law firm, but it makes sense for an architectural practice. Their clients need to be able to see architecture in action, and where better to show it than in careful consideration of the way the firm is structured and how people work.

Time will tell if our model is the right one. However like a good building, if designed well it will flex and adapt to changing circumstance without compromising the architectural concept. That is to bring architecture back together, built on the understanding of the parts as a representation of all who contribute.

How many firms have thought carefully (and continuously) about their structure and activities. How many would be comfortable demonstrating and justifying their choices in the way that Page\Park does, to reassure their clients that they know how to make good commercial and legal decisions?

Learning and Knowledge

What first piqued my interest in Page\Park was the section on the site labelled ‘Thinking’ and the clear statement of intent there:

Creative yet careful thinking is at the heart of the approach of the studio. In the course of professional practice it is important to carve space to reflect and evolve ideas.

Our early Monday morning meetings are a vehicle for that exploration where ideas and approaches are presented and debated.

These themes are encouraged to grow into subjects for seminars where we extend a wider invitation to others to come, share and shape the discussion.

Here’s something that law firms could imitate. The new regulatory approach to learning (continuing competence) is an opportunity for firms to think imaginatively about the way they support the development of their lawyers and clients. The key elements of Page\Park’s approach offer an interesting starting point.

  • A focus on ideas. Rather than going straight into the detail (new developments in cladding materials, or the latest case on limitations of liability), looking at more general themes gives people the intellectual tools to deal with detail on their own terms.
  • Specified time for reflection. Many law firms have regular know-how or training sessions. These are usually arranged by practice group or sector, and are scattered through the week. As a result, they are easily avoided. In setting aside time early in the week for the whole practice, Page\Park sends a clear message about the significance of this activity. Reflection becomes part of ‘the way we work around here’ rather than being something that people might try to squeeze into a crowded work-week.
  • A direction of travel. Although ‘ideas’ and ‘reflection’ appear a bit wishy-washy, the firm suggests a much harder-edged set of outcomes. Whilst the starting point might be open-ended (this week’s was about ‘Good’), the intention is that ideas are refined and discussed further in a seminar involving external contributors (such as one on learning spaces in schools). Ultimately, that discussion is distilled into a briefing that is useful for clients and fellow professionals (on office/working culture, for example). The cycle repeats itself as the briefing becomes the foundation for a future Monday morning discussion.

The simplicity of this process allows it to become a habit. Once the habit is embedded, the culture of learning and development of ideas becomes an integral part of the firm’s practice.

Again, how many law firms have thought this carefully about how to develop knowledge, expertise and insight across the firm? As long as they look only at the way other firms do things (or the way things have been done in the past) they won’t be able to make meaningful progress.

So, great artists steal and great scientists stand on the shoulders of others. In doing so, they choose carefully who to steal from and whose shoulders to mount. They don’t just adopt like-minded models. They seek out influences that others ignore. Great law firms do the same. They look beyond the law for inspiration.


Will more training really fix that problem?

When things go wrong, it is common to see training proposed as the first (and often only) response. I can understand this — training courses come with an obvious KPI (number of people trained), they can often be cheap if provided internally, and they are readily procured from external suppliers if necessary. Most significantly, if the organisation provides training, the blame for errors (or just poor performance) can be placed more securely on the shoulders of the people doing the job.

But, often, people commit errors after having been trained. They perform poorly even when they demonstrably know and understand what they are supposed to do. More training cannot fix this problem. Something else is needed.

Enlightenment on Calton HillThis is not a new issue. Oddly, though, very few organisations seem to want to grapple with it. The default response, again and again, is to lay on a training course.

Some years ago, Harold Jarche provided clear guidance to those facing this situation. In a post dating from February 2005, he turns the issue on its head. Rather than concentrating on the manifestation of a problem (people performing poorly), he advises looking more closely at the system itself — what is the cause of poor performance. The post includes a really clear (and simple) flow chart to help diagnose the appropriate response. Tellingly, it concludes that “only a lack of skills and knowledge warrants training.”

Harold’s flow chart also contains the reasons why organisations fall back on training unnecessarily often — the alternatives require at least a small amount of change. Those include changes to the way jobs are done (tweaking processes or removing obstacles) or to performance regimes. Ultimately, there may be repercussions for the individual, but only once organisational changes have been tried and the results tested.

Harold expands on the need to address barriers to performance in a later blog post (together with a number of resources linked from it). Whenever I hear someone demanding training to fix a problem, my mind turns to Harold’s advice. As long as training is seen as a cure-all, the fundamental problems underlying poor performance are unlikely to be resolved.

Knowledge insights from Atul Gawande’s Reith lectures

Annually since 1948, the BBC has broadcast a short series of lectures named in honour of its founder, Lord Reith. This year’s series is being given by Atul Gawande. Although his subject is the nature of progress and failure in medicine, the two lectures delivered thus far resonate way beyond that field. I want to pick out a few points here from those two lectures in that they relate to the way we deal with knowledge in our work. The remaining two lectures have a slightly different focus, so I may look at those in a later post.

Lecture 1: Why Do Doctors Fail?

(Audio | Transcript)

At the heart of Gawande’s first lecture is an article published in the first issue of the Journal of Medicine and Philosophy in 1976: “Toward a Theory of Medical Fallibility” by Samuel Gorovitz and Alasdair MacIntyre. As Gawande summarises:

They said there are two primary reasons why we might fail. Number one is ignorance: we have only a limited understanding of all of the relevant physical laws and conditions that apply to any given problem or circumstance. The second reason, however, they called “ineptitude”, meaning that the knowledge exists but an individual or a group of individuals fail to apply that knowledge correctly.

In addition to ignorance and ineptitude, however, Gorovitz and MacIntyre identified a third cause of failure:

they said that there is necessary fallibility, some knowledge science can never deliver on. They went back to the example of how a given hurricane will behave when it will make landfall, how fast it will be going when it does, and what they said is that we’re asking science to do more than it can when we ask it to tell us just what exactly is going on. All hurricanes are ones that follow predictable laws of behaviour but no hurricane is like any other hurricane. Each one is unique. We therefore cannot have perfect knowledge of a hurricane short of having a complete understanding of all the laws that describe natural processes and a complete state description of the world, they said. It required, in other words, omniscience, and we can’t have that.

This necessary fallibility is akin to, if not the same as, the complexity that I described in an earlier blog post here.

Interestingly, Gawande chooses not to focus on necessary fallibility, but on the other two components. In particular, he is concerned that there is an uneven distribution of capabilities:

But the story of our time, I think, has now become in a unique way as much a story about struggling with ineptitude as struggling with ignorance. You go back a hundred years, and we lived in a world where our futures were governed largely by ignorance. But in this last century, we’ve come through an extraordinary explosion of discovery and then the puzzle has become not only how we close the continuing gaps of ignorance open to us but also how we ensure that the knowledge gets there, that the finger probe is on the right finger.

There’s a misconception I think about global health. We think global health is about care in just the poorest parts of the world. But the way I think about global health, it’s about the idea of making care better everywhere – the idea that we are trying to deploy the capabilities that we have discovered over the last century, town by town, to every person alive.

I think something similar is at foot in relation to legal knowledge. Those of us who work on improving knowledge within law firms often focus on the things that look hard — understanding new cases and legislation, for example — but in fact clients would get better value if their lawyers thought more carefully about the laws and processes that they take to be straightforward. Reducing ineptitude within firms is arguably more important than attempting to eliminate legal ignorance. Equally, there is much to be gained from spreading awareness of the law more widely outside law firms. This is an area where I see a number of technology-based enterprises at work, as well as the work of the National Archives in opening up the UK’s legislative archive.

Lecture 2: The Century of the System

(Audio | Transcript)

Atal Gawande’s second lecture draws heavily on his book The Checklist Manifesto. I thought I had already written about this book on the blog, but it turns out I haven’t. It is probably too late to do that at length now, since the concept has found its way deep into business culture. For example, we put it at the heart of some of the risk and quality work that I supported in my last firm.

What the lecture brings out is an emphasis on the checklist as a systematic tool, rather than a personal guide. This is present in the book as well, but when one hears Gawande speak the focus is unavoidable.

One of my colleagues said that “we are graduating from the century of the molecule to the century of the system.” And by that what he meant was that we’ve gained an enormous amount in the last century by focusing on reducing problems to their atomic particles – you know discovered the gene that underlies disease or the neuron that underlies the way our brain works or you know the super specialist that can deliver on a corner of knowledge – but what we’re discovering is that we graduate into the future, we are faced with a world where it’s how the genes connect together that actually determine what our diseases actually do. It’s how the neurons connect together and form networks that create consciousness and behaviour, and it’s in fact how the drugs and the devices and the specialists all work together that actually create the care that we want. And when they don’t fit together, we get the experience we all have – which is that care falls apart. The basics end up being known, but they’re not followed.

And so we were approached by the World Health Organisation several years ago with a project to try to reduce deaths in surgery. I thought how can you possibly do that? But it was in exactly the same kind of problem – the basics were known but not necessarily followed. And so we worked with a team from … from the airline industry to design what emerged as just a checklist – a checklist though that was made specifically to catch the kinds of problems that even experts will make mistakes at doing. Most often basically failures of communications. The checklist had some dumb things – do you have the right patient, do you have the right side of the body you’re operating on, have you given an antibiotic that can reduce the infections by 50 per cent, have you given it at the right time? But the most powerful components are does everybody on the team know each other’s name and role, has the anaesthesia team described the medical issues the patient has? Has the surgeon briefed the team on the goals of the operation, how long the case will take, how much blood they should be prepared to give? Has the nurse been able to outline what equipment is prepared? Are all questions answered? And only then do you begin.

The outcome of this work was a huge reduction in complication rates (down 35%) and deaths (down 47%). The system has been shown to have saved 9000 lives in Scotland alone.

The lectures are followed by an opportunity for the audience to ask questions, and it is here that some of the most telling points were brought out. In response to a question from an operations manager at Heathrow Airport, Gawande highlighted a point about complexity and the limitations of expecting everyone to know their own job.

In fact in order to even come at how we would attack this question in surgery, what we did was we brought in the lead safety engineer from Boeing to come with us. He didn’t know anything about healthcare, but when he saw the way that we even approached the problem of improving outcomes in surgery, he was sort of baffled, you know, that he would watch how I went into an operating room and I’d go into an operating room and I’d just start operating. And he said, “Hold on a minute. Is this really what you do? You don’t … Have you made a plan with every …” “Everybody knows what to do. They all know what to do. You guys know what to do, right?” “Oh yeah, yeah, yeah, we know what to do.” And then we’d watch one thing fall through the cracks and then another and then another. It took him only a moment to step back and say, “You all need some basic communication systems around the idea that a team has to be effective at what they’re doing.” So I think that there are lessons very much coming from other fields.

Here’s the big difference. There are two people in a cockpit trying to make something happen and in many clinical environments it’s many more than that. My mother went for a total knee replacement and I counted the number of people who walked in the room in three days and it was 66 different people. And so the complexity of making 66 people work together – you know you’d have the physical therapist walk in in the morning and they’d say, “What are you doing in bed? You should be out of bed.” And the physical therapist would come in the afternoon and it would be a different person and they’d say, “What are you doing out of bed? You should be in bed.” This is still where we are.

And responding to a suggestion that checklists might ossify and hinder innovation:

That’s precisely the danger. So there’s the bad checklist and the good checklist, right? So the bad one is one that turns people’s brains off. More often than not, the effective checklist – ask people questions that they have to discuss and get their ideas forward – and that was out of a scientific process that we identified and it’s made in ways to help an expert be even better at what they do.

For me, those are the two lasting insights from the lecture. First, checklists need to be as much about communication as they are about giving instructions. And, second, checklists should be structured to draw out additional thought and contributions by the team using them. Both of these insights can usefully inform practice in a range of areas (including the law) and would be sensibly applied in the generation of knowledge materials — whether those come in the form of checklists or otherwise.

Learning and developing

One of the things that comes across clearly in both of these lectures is a commitment to nuanced learning. Like most of his fellow physicians, Gawande is clearly keen on increasing his personal knowledge within his field and beyond. Both lectures depend on insights from other people’s published research, and Gawande shows how those insights have more general application. However, it is obvious that he isn’t interested just in the knowledge. He wants to be able to to express ideas clearly to others, and he does this really well with a coherent narrative thread running through each lecture (this continues in the later lectures too). Finally, he is alert to the way knowledge informs practice. The second lecture is based on a paper describing treatment procedures for hypothermic victims of drowning. However, Gawande extracts from this highly-specialised situation a set of principles that might be relevant to any complex treatment.

Gawande’s approach thus has the following characteristics:

  • Breadth of input
  • Evidence-based narrative
  • Thoughtful generalisation
  • Relevant conclusions

Each of those factors increases the immediate and lasting value of the final product to the listener or reader.

Thinking back to some of the knowledge content for which I have been responsible in the past, I am not sure that much of it was as well structured as Gawande’s lectures. As a result it probably had much less value than it could have done — certainly not lasting value.

It’s a good standard to aim for.

Positioning — what is this thing called KM?

One of the most fruitless recurring activities in the knowledge management world is the irregular call to ‘define KM.’ I have touched on this here before, but today is slightly different.

Study at Calke AbbeyMatt Moore has produced an intriguing list of things people call knowledge management. It includes an eclectic mixture of things that don’t always sit well together. However, there are some themes. The descriptions in the predominant group refer to knowledge in some way (typically attached to verbs like transfer, sharing, retention, exchange, development or enablement). The next largest group is ‘social’, closely followed by ‘information’ and ‘learning’, then ‘collaboration’ ‘best practice’ and ‘innovation’.

Overall, the list strikes me as being very dependent on organisational context — a business that depends heavily on marketing products to customers is more likely to react well to “Multi-channel, digital information sharing strategy and customer intelligence capability” rather than “Knowledge and Process Management.” And KM teams may change their focus over time — either as a reaction to changes in the wider business or to take advantage of new tools and technologies that might be seen to further the cause. This would explain the proliferation of ‘social’ titles, for example.

Coincidentally, last week Nick Milton provided an interesting template to help organisations thinking about their approach to knowledge management. His blog post, “Knowledge of process, knowledge of product, knowledge of customer” suggests that organisations locate themselves between three extremes of a triad — process, product, customer — depending on where their efforts are (or should be) focussed.

I like Nick’s approach (even though he underplays the extent to which law firms need to be aware of client needs), but it proceeds on an assumption that organisations are self-aware enough to say honestly where they are. In my experience, few have that awareness. Instead they hoodwink themselves with aspirational assertions about their goals and the value they provide. One of the things that Cognitive Edge techniques can do for a firm is to help them avoid entrained patterns of thinking and unlock the real business culture and aspirations driving knowledge needs.

Once it is understood what (and who) the business is for, and where it is heading, the choice of knowledge activities (and perhaps their name) will flow from that.

If you are interested in exploring these techniques, I can help — get in touch.

Law firms, memory and history

Today is 1 May, the first day of a new year for most UK-based law firms (financially, at least). All our clocks have rolled back to zero and there should be a clear way forward into the unknown of the coming year. With that in mind, I have been thinking about history.


A couple of years ago, I spent some time talking about the use of history within organisations with Julie Reynolds. We first connected following a conference session at KMUK in 2010, in which a colleague of hers described a knowledge transfer project involving Hunterian Museum at the Royal College of Surgeons. I referred to this in a previous blog post, but the links I provided there are dead or dying (Posterous is about to be closed, for one thing).

The work with the Hunterian Museum (along with other museums)  focused on the ways in which objects in the museum’s collection (some quite unusual) could be used to support different kinds of conversations within businesses. This is how I summarised it in 2010:

What [they] have done as part of the Knowledge Transfer Project is to develop a set of modules aimed at developing business skills, using exhibits from the museum. Some of these are quite intriguing (to say the least). They showed us images of two exhibits they use on the ‘building confidence’ module: a set of dentures made for Winston Churchill (designed to maintain his slight speech impediment so that no-one would notice the change) and “a painted silver prosthetic nose, mounted on a spectacle frame, from the mid-1800s. The nose was worn by a woman who had lost her own as a result of syphilis.” (Quoted from a Hunterian volunteers’ newsletter, in which there is also a picture of the nose.) She later presented it to her physician stating that she had remarried and that her new husband preferred her without it. It is easy to see how these items could spark a valuable learning conversation about confidence in a business or personal context.

Following her involvement in this project, Julie started a course in Manchester and we met a few times to discuss how her experience in curation might be used in a commercial context. She had previously worked for other businesses to help them connect with their own histories through archives and collections of artefacts. During these conversations, I quickly realised that law firms rarely refer publicly to their histories. Very few provide an ‘origin story’ on their websites and I suspect even fewer use archivists or similar professionals to preserve key documents for future use. (If you know better, please let me know in the comments or by email.) Julie had some great ideas of ways in which we might use the firm’s back-story to support some types of business development activity, but we weren’t ready for them. (The picture at the top of this post shows the imaginative container in which Julie presented her proposed ideas.)  I was disappointed that we couldn’t make it work, but I still wonder why firms have a problem with history.

After reflection, I think there are a number of different issues. The immediate one is that referring to the past doesn’t appear to help in winning work for the future (beyond highlighting juicy recent deals that might resonate with clients). When seeking legal advice, clients might be interested in the depth of experience within the team who will do the work. That probably doesn’t translate into an interest in the longevity of the firm or its antecedents. History, on this analysis, is a distraction. Another factor is that law firms are very fluid businesses. They have practically no existence separate from the people constituting them at any given moment. That means that history might be considered irrelevant, if not misleading. Finally (and back to the starting point of this post), the annual financial cycle is so strong that firms might actually sense 1 May as the beginning of current history, and so anything before that date is pre-history. (I think this last factor is actually diminishing for a number of reasons.)

But what is the impact of the anti-historical attitude amongst firms? The most significant for me is that without organisational memory, the firm has to fall back on personal recollection by distracted individuals. The result is probably even worse than anything produced by Jane Austen’s “partial, prejudiced, & ignorant Historian.” This is sometimes manifest in the way that change is resisted. The classic lines, “That’s not how we do things here” or “We did that before and it didn’t work” can be heard in all sorts of organisations. But without a documented history there is no way to deal with them. A historical account can be used to disprove such statements, or to show why things that were true in the past no longer apply. If there is no historical account such a rebuttal is not possible, and so resistance succeeds. At a practical level, that is why documented after-action reviews can be so powerful.

In the end, it’s a paradox. Law firms need to look to the future and update themselves to meet new economic, regulatory, client or technological challenges, but many of them will fail to do so because they prefer to pretend that they have no past.

Be irrational about irrationality

Given my focus here on challenging traditional assumptions about knowledge and the law, it would be negligent of me not to draw attention to a concise Scientific American blog from last month that points up a key flaw in much popular writing about the psychology of decision-making.

The shortcomings of our rationality have been thoroughly exposed to the lay audience. But there’s a peculiar inconsistency about this trend. People seem to absorb these books uncritically, ironically falling prey to some of the very biases they should be on the lookout for: incomplete information and seductive stories. That is, when people learn about how we irrationally jump to conclusions they form new opinions about how the brain works from the little information they recently acquired. They jump to conclusions about how the brain jumps to conclusions and fit their newfound knowledge into a larger story that romantically and naively describes personal enlightenment.

This is not a new problem, but it is enhanced by the proliferation of this kind of literature, and the way that the message of these books is amplified by blogs and tweets. I confess to being part of this chorus, so this is a conscious effort to help myself avoid being sucked into unwavering belief.

Ultimately, we need to remember what philosophers get right. Listen and read carefully; logically analyze arguments; try to avoid jumping to conclusions; don’t rely on stories too much. The Greek playwright Euripides was right: Question everything, learn something, answer nothing.

Asking better questions, getting better insight

Over the past few months I have been using a model that Nick Milton shared on his blog, to help people understand that the knowledge activities they have traditionally espoused only tell half the story.

I have reservationas about the tacit/explicit distinction, but that is irrelevant for now. The key thing for me is that there is a clear and meaningful difference between systems and tools that push knowledge to people and the activities that develop people’s ability to pull knowledge at the moment of need.

In another post, Nick describes advising an organisation which had over-emphasised the push side of the table. I think many law firms are in this position now. We have developed vast banks of precedents, practice notes, process guides, checklists and so on; and we have encouraged in our lawyers a dependency on these things. To a point, this is all good. These tools help people to dispose efficiently of the work that should not require great thought. But what about those areas where great thought is required. How do we build people’s capability to get to the insight and expertise that will help them solve the trickier problems that clients bring?

We can throw technology at the problem again — search engines will allow people to draw on the vast pool of work that has already been done. Sometimes that will disclose a really useful document that contains just the right information to help the lawyer arrive at a suitable answer. More often, though, it will produce nothing at all or many documents none of which actually help directly. Those many documents may, however, help to identify the right people to ask for help.

So it comes back to asking. Nick Milton has made this point in a couple of posts on his blog this week. The more recent post, “Asking in KM, when and how?”, identifies a number of situations in which asking might be institutionalised: communities of practice, after action reviews, and retrospects; but it doesn’t get to the heart of the question. What does good asking look like?

Fortunately, help is at hand. (The topic must be in the air at the moment for some reason.) Ron Ashkenas, in an HBR blog post, “When the Help You Get Isn’t Helpful“, explores what happens when someone shares their knowledge in a way that is actually useless.

Consider John, an account executive who is contemplating how to expand into a new market segment — one that is wrought with regulatory challenges. With a puzzled look on his face, he walks past Samantha, who asks, “Are you okay?” John responds, “Not really, I’m trying to figure out how to gain access for more of our products into Latin America.” Samantha immediately runs to her office and returns with a 100-page analytical report detailing the region. She then spends the next ten minutes going over a how-to guide on conducting market research. Out of respect to Samantha, John patiently listens. But despite her good intentions, Samantha’s input is counterproductive. John might have benefited from Samantha’s time if she had focused on solving his regulatory conundrum. Instead, John walks away feeling even more frustrated and perplexed.

What happened here? John presented Samantha with a problem, and she offered help. I suspect this kind of unfocused response is common. I know I have been guilty of it in the past, and I suspect I will be again in the future. The difficulty is that people are actually very poor at asking questions. Why that might be is a conundrum for a different time. Fortunately, Ron Ashkenas has some guidance to get better at asking.

Target your requests. Instead of asking whoever is available, intentionally target certain individuals. Create a list of people who have access to resources, information, and relevant experience about your problem. Expand your list to include friends and colleagues who tend to challenge the norm and see the world differently. Make a point of including people who are likely to have useful views but you might hesitate to approach because you think they are too busy or wouldn’t be interested.

Frame your question. Before asking for input, figure out what you really need: What kind of advice are you looking for? What information would be useful? Are there gaps in your thinking? Then consider how to frame your question so that you solicit the right advice.

Redirect the conversation. If the person offering advice jumps to conclusions, be prepared to redirect them. Most people will not be offended if you politely refocus them. For instance, had John interrupted Samantha’s lecture on market research by saying, “The issue isn’t our understanding of the market, it’s how to deal with the area’s regulatory restrictions. That’s where I could use some help,” Samantha could have spent the next ten minutes firing off some useful ideas.

This doesn’t feel like rocket science. Frequently, however, I see people asking quite open-ended questions in the hope that something useful will pop up. I suspect that what actually happens is that those with the knowledge to assist don’t answer precisely because the question is too vague. Yet again, the key to good a outcome here is the same as it is in many other contexts. Careful preparation and clarity of scope will generate the answer you need. (It is also important to be comfortable with the possibility that there is no answer. If you are precise and clear, the fact that no answer is forthcoming is much more likely to be an accurate reflection of there being no answer available at all.)

I think this is an iterative process:

  • Work out exactly what you need to know. What is the gap in your understanding that needs to be filled in order to resolve the issue raised by your client?
  • Who is the best person to answer that question? Do you know that person already, or will you need to seek advice from others? Plan how to ask the right question to identify that person.

Repeat until satisfied…

Some thoughts on legal education and practice

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

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

Some personal background (skip if you like)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If I Only Had a Brain — how to become the wisest in Oz

Last week, a random tweet by James Grandage prompted a chain of thought. He tweeted:

My response was to suggest that he had it already: a brain.

On reflection, however, it appears that James was seeking what many firms want — a brain for the whole organisation. To be able to create and recall institutional memories, to process sensations gathered by ears and eyes and to use those sensations to engage with other organisations (or people) and their brains.

In the name of knowledge management, many organisations have created databases and repositories that are intended to operate as brains as far as the technology will allow. Unfortunately, their actual performance often falls somewhat short of this promise. Why might this be?

One answer is suggested by the experience of the Scarecrow in Frank L. Baum’s Wizard of Oz. You will recall that he accompanied Dorothy on her journey to Oz in order to ask the Wizard for a brain, because that is what he wants above all else. As they travel down the Yellow Brick Road, the Scarecrow’s shows by his actions that in fact he has a brain, and can use it. When they get to Oz, he is recognised as the wisest man there.

Many law firms are on a similar journey. They labour in the belief that all they need to complete themselves is a know-how system, or database, or whatever terminology they use to describe their brain. In reality, they have one — distributed amongst their people — which they often use to spectacular effect. (For examples, see the FT’s report on Innovative Lawyers, which highlights a range of activities — very few (if any) of which depend on the existence of a KM system.)

Often, however, brains (whether individual or organisational) are used spectacularly poorly. I suspect that this is partly why KM databases fail so well: people just use them badly — they don’t use them, or they don’t volunteer their insights to them. (There are other, better, reasons, but I want to concentrate on this one for now.)

How actively do people use their own brains to reflect and learn from their experiences? Or to seek information or insight that challenges what they think they know? I must confess that I see little of this. (I try to do it myself, but I am sure I have blind spots where I accept a partial view of reality, rather than continuing to seek a better truth.) I am sure this critique and creativity happens, but for most people it is concentrated in areas where they are already experts. For lawyers, that is their area of legal expertise — not the work that goes on around them to support the firm in other ways.

As an example of this, consider the know-how system. Whilst the research I linked to above (and again here), dates from 2007, I still see people advocating such repositories as the cure-all for law firms’ knowledge ailments. At the very least, they ought surely to recognise that there is a contrary view and argue against it?

Another example that comes up repeatedly is the assertion that creative thought depends on using one’s right brain, rather than the analytical left brain. However, this depends on an understanding of neuroscience that was undermined twelve years ago. The origin of the left-right brain model was the research of Roger Sperry, who was awarded the Nobel Prize in 1981. Despite the attractiveness of this model (especially to a range of management authors), neuroscience, like all the sciences, does not stand still — all theories are challengeable.

The watershed year is 1998, when Brenda Milner, Larry Squire, and Eric Kandel published a breakthrough article in the journal Neuron, “Cognitive Neuroscience and the Study of Memory.” Kandel won the Nobel Prize two years later for his contribution to this work. Since then, neuroscientists have ceased to accept Sperry’s two-sided brain. The new model of the brain is “intelligent memory,” in which analysis and intuition work together in the mind in all modes of thought. There is no left brain; there is no right. There is only learning and recall, in various combinations, throughout the entire brain.

Despite the fact that this new model is just as easy to understand, people still fall back on the discredited left-right brain model. Part of the reason, I think, is that they don’t see it as their responsibility to keep up with developments in neuroscience. But surely using 30-year-old ideas about how the brain works brings a responsibility to check every now and then that those ideas are still current.

Something similar happens with urban legends. Here’s a classic KM legend: Stewart Brand on the New College roof beams.

It’s a good story, but not strictly true. In fact the beams had been replaced with pitch pine during the 18th century, the plantation from which the oak came was not planted until a date after the hall was originally built, and forestry practice is such that oak is often available for such a use.

It is not the case that these oaks were kept for the express purpose of replacing the Hall ceiling. It is standard woodland management to grow stands of mixed broadleaf trees e.g., oaks, interplanted with hazel and ash. The hazel and ash are coppiced approximately every 20-25 years to yield poles. The oaks, however, are left to grow on and eventally, after 150 years or more, they yield large pieces for major construction work such as beams, knees etc.

If we rely too heavily on documents and ideas that are familiar (and comfortable), we run the risk of selling ourselves short. As Simon Bostock has recently pointed out, there is almost invariably more interesting stuff in what we have not written down than in what we have captured (or identified as ‘lost knowledge’). Referring to another KM story (NASA have lost the knowledge that would be necessary to get to the moon again), he points out that what was really lost was not the documentation, but the less tangible stuff.

This means, basically, that even if NASA had managed to keep track of the ‘critical blueprints’, they would have been stuffed. Design trade-offs are the stuff of tacit knowledge. Which usually lives inside stories, networks, snippets of shoptalk, chance sneaky peeks at a colleague’s notes, bitter disputes and rivalries…

In knowledge terms, we’re about to live through another Black Death, another NASA-sized readjustment.

Smart organisations will recognise this in advance and avoid the archaeological dig at the junkyard, the museum and the old-folk’s home.

Archaeology is interesting, and can shed light on past and present activities, but we don’t use Grecian urns to keep food in any more. We use new stuff. The new stuff (whatever it might be) should be our continuing focus. That’s how we should use our brains, and how those supporting effective knowledge use should encourage brain-use in their organisations.

Walking into knowledge

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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