Are You Game?

23 Jul

gameBy Milena Higgins, Director, Litigation Knowledge Management, Fish & Richardson P.C.

Warning: This is a pitch.

This post is designed to intrigue you into considering a novel learning experience. Be warned: you have entered the cone of persuasion.

When I first began hearing about gamification, frankly, I thought translating the features that motivate players in video games into non-game settings (e.g., the practice of law) was a bit silly. Images of Candy Crush, Farmville, and my teenagers’ Portal and Assassin’s Creed games flashed through my mind. Then I remembered Tetris and got nostalgic; but, I digress. Naively I thought gamification was all about playing games.

Like law, gamification appeared to be based on competitive principles, but seemed to be all about awarding points and badges. My reaction was dismissive: surely no lawyer is going to be seriously motivated by earning points and badges, right?

Familiarity Breeds Respect

That’s what I thought until I actually decided to experience gamification in action. In the process of implementing gamification for one of our Knowledge Management (KM) applications at my firm, Fish & Richardson, and later through working with gamification experts while planning the upcoming ILTA Imagine Gaming the Lawyers session (This is a non-subliminal prompt: KM track, Tuesday 8/19/2014 at 11:00, #ILTA14, #KMPG5), I learned that gamification not only is a lot more nuanced and complex, but also can be a powerful tool for motivating change.

Let’s Just Go with the Status Quo

Most people are at best uncomfortable with any kind of change – personal, social, operational, or vocational. Many deeply fear or actively hate it. As creatures of habit, we value stability and security more than novelty and innovation. We prefer the devil we know to the one we don’t. Accordingly, the changes sweeping through the legal profession have left many lawyers ashen-faced, defensive, and very resistant to novel approaches and technologies, let alone major paradigm shifts. Is there a way to loosen this rigidity?

Fun? Seriously?

Imagine if, instead of dreading and resisting any new approach, people could be motivated to try it. What if they could be the leader in their community, the first to change, the one who contributes most, the one recognized for their knowledge that others look up to and admire?

This is what gamification can bring to the table, even a table surrounded by lawyers. By learning about and implementing game mechanics concepts, you really can motivate people to try that new application you just spent months building or installing. As a bonus, they might even become more engaged in their work and actually have fun while trying the new application.

Gamification 101

To gamify any activity, you first need to decide on the object of the “game.” Is your goal to get people to switch from using system A to system B? Is it to get users to contribute content? Or, is it to get people to consistently enter their time daily?

Whatever your goal, once you know the desired outcome you can start thinking about the behaviors you want to reward. Yes, you can reward the desired behaviors with points. And, yes, maybe a certain number of points earns a badge. But, the key is in the social component – others seeing the badge just earned.

If you think these competitive incentives sound trivial, just watch them in action. Maybe the person sitting next door to you noticed that you just earned the “Awesome” badge, and is now trying to do whatever you did because they want to prove that they are more awesome than you. Before you know it, you might have a whole group of people competing to be the most awesome. Imagine the change you could generate – the resistance you could beat — if you could make this happen. You might just end up the most awesome person in your organization.

Advanced Gamification

Let’s be clear: gamification is much more than points and badges. It focuses on engaging people on an emotional level to motivate them. This is quite different from merely playing games, which is primarily for entertainment. It also goes beyond rewards programs (all those points and badges) that engage people on a transactional level primarily to compensate them (remember the old coffee shop punch cards?). For more on this, see Why Gamification’s Not a Game.

Gamification is already used in education to engage and motivate students to learn (see Fantasy Geopolitics) and by corporations to engage their employees or customers. For example, after building a gamified experience for their customers, New Belgium Brews saw an 8x increase in new user registrations in just one day and a 5x growth in daily logins. Imagine if KM could show these types of metrics.

The bottom line: If our job as Knowledge Managers is to engage people to participate in our programs and help them to adjust to change, gamification can be a powerful tool indeed.

Here’s the Pitch, Folks

Want to learn some practical techniques for becoming awesome? Want to get a handle on the ABCs of Gamification? Come to our ILTA Imagine Conference session on Tuesday after the keynote, Gaming the Lawyers: Driving Adoption, Contribution, and Change. You will learn a lot more about gamification from our panel of experts:

Scott Reid, Director of KM Innovation at Littler Mendelson and former CKO at the US Army JAG Corps. Scott will share his experience motivating JAG lawyers to participate in their enterprise social network through gamification.

Pam Woldow, Partner and General Counsel of global legal consulting firm Edge International. Pam has worked with law firm and law department clients who use gamification in their business and has written compelling posts on the benefits of gamification in the legal industry.

Raul Taveras, Manager of IT Application Projects at Fish & Richardson. Raul is an avid Foursquare gamer and self-professed hashtag king. He will share his experience in gamifying KM and training efforts at Fish.

Rubsun Ho, partner and co-founder of Cognition LLP. Rubsun will explain how Cognition motivates lawyers to provide outstanding client value and service with a gamification process that earns them redeemable points.

The Super-charged Firm Directory: Identifying the Right Combination of Experience and Skills

8 Jul

By Ramin Vosough, Vice President Product Sales & Marketing, Neudesic
Part I of a three-part series*

Many firms with 200+ attorneys have arrived at some method for identifying which lawyers have which experience and skills.  Some firms have developed an in-house directory or profile solution residing on the firm’s intranet, which combines public and internal information and links to a public bio. In a larger firm, the tool may include a search solution that crawls through the firm’s documents and matters or a manual database that captures expertise by practice and industry. Common across these approaches, however, is the reality that all too often someone within business development, marketing or KM must field email and phone requests to identify the best lawyers for a project. So, while many sophisticated tools exist, a human resource still needs to match the right resource to any given opportunity.

Firms tell us that identifying the right resource involves looking at a combination of factors, starting with a vision of what “right” means for the firm and being flexible enough to capture a magical combination. Firms often ask us, “How can I find the right attorney with a specific, substantiated skill and experience combination, who is based in a particular location, and available to work on a project within a given timeframe?” Next, they ask what that would even look like: Is it a profile, a custom search, or something else entirely? Where does the information come from and how is it populated? Perhaps the most important question is, “Can I trust the information when I find it?”

Attorney profile information resides in various systems of record throughout a firm. Bar associations, court affiliations, and employment history are just a few examples of the information firms have at hand. Firm systems also house valuable experience-related data in documents, emails, and other client-matter related records. But, some firms are starting to realize that much critical information may not exist in their systems yet – attorneys understand the unique combination of skills and experience they bring to bear on particular projects and that understanding typically is never identified, published, or presented in ways that can be searched and located effectively. This is especially true with laterally hired partners with no activity history on record to turn up in an experience search.

Identifying and communicating that level of information, not to mention keeping it current, may involve formal initiatives using questionnaires or interviews. But, this raises important considerations for KM professionals who must determine how to weave the optimal combination of certified and self-declared information into a real-time, dynamic profile. For example, by combining self-declaration with layers of validation, a firm could capture new information about skills and experience directly from employees, while also validating the information before it is published and becomes searchable within the firm.

Internal comprehensive skills and expertise provide great value. A flexible approach that includes self-declared, validated, and certified information allows a firm to dive more deeply into the skills, experience, or other profile criteria than what can be shared in public-facing bios or on social media channels like LinkedIn. This approach enables business development and marketing professionals to slice and dice the unique, multifaceted skills and experience of attorneys in real-time for different pitches.

Your firm has its own goals and objectives. So, how your firm uses its lawyer directory should reflect those goals and objectives. But, all firms taking on this type of initiative need to do it right, with “right” meaning making it worthwhile, making it valuable, and making it useful.

*Look for part II on Surfacing and Validating Real Expertise in an upcoming post.

Why Sharing Is Power

13 Jun

headsBy Peggy Lahammer

In the January BTI Market Outlook and Client Service Review 2014, we learned that corporate counsel spending for outside counsel is flat and that competition for “primary” or even “secondary” law firm status is highly competitive. However, firms that can deliver consistently superior client service will win the hearts and pocketbooks of their corporate clients and be able to grow their business, outstripping the legal services industry’s current flat growth trend.

A firm’s knowledge base, both physical and intellectual, is one of its greatest assets and, when leveraged well, can create a competitive advantage that will result in a superior quality work product in less time. Central to the development of a knowledge base is the need for attorneys to share information. In my experience, those firms that are able to gain attorney buy-in and then develop KM initiatives that effectively leverage that knowledge base tend to be the most successful over time.

The Sharing Problem

Attorneys must be willing to share their relationships, their expertise, their forms and templates, and even their bits of insight on their clients’ needs. Unfortunately, this is where the problem lies—attorneys as a group have personality traits that make sharing not intrinsic to their natural way of functioning. To make matters worse – and perhaps in part because of those personality traits – many law firm compensation structures do not adequately reward attorneys for sharing.

Dr. Larry Richard, an attorney and psychologist, has explored attorney personality traits for over 20 years using the Caliper Profile. His research shows that, as a group, attorneys score far higher than members of the general public for a personality trait known as skepticism. In fact, they tend to have an average score in the 90th percentile for this trait. “People who score high on this trait tend to be skeptical, cynical, judgmental, questioning, argumentative and somewhat self-protective” and have a tendency not to trust others. Although skepticism may serve attorneys well in representing clients, it can detract from a collaborative working environment.

Indeed a climate of trust is essential to delivery and effective use of information capital at a firm. If attorneys are skeptical of the value of sharing their information, they are less likely to share it – even if it may benefit the firm and result in improved client results. If KM professionals have to spend much of their time and energy defending the need to share information, rather than organizing and creating easy access to it, they may waste considerable time “making their case” instead of proving its value through improved shared resources. In my experience, potentially beneficial KM initiatives dependent on shared information will wither and die in a firm climate that does not support sharing.

Compounding attorney personality tendencies are attorney compensation models that may not reward sharing activities. Financial rewards must be given to attorneys to engage in non-billable activities that deliver information. Without financial compensation, there simply is little incentive to take time away from billable or revenue generating activities for important KM initiatives. Firm administrators must expect that attorneys will share their intelligence, and KM professionals must make it quick and easy for them to do so, so that they can effectively leverage it for the benefit of all firm members.

Examples of Success

In my many years of working with firms, I have been fortunate to learn of some great examples of effective sharing programs at law firms. For example, I know of one practice group that is highly dependent on form documents for its practice; the group carefully creates and regularly updates templates through a committee process. No changes are made to the templates without review of the necessary changes by those who are most familiar with changes in the law. Also, the documents are secured so that only members of the team have access to the templates, and any use of those documents results in a financial credit to those who created those forms.

Another successful content sharing program I have seen is the use of dynamic public Outlook folders mapped to a legal taxonomy. Each folder contains the top node of the legal taxonomy, with sub-folders for categories of content. Each document is placed in an appropriate topical sub-folder, with the document name displayed through a single click drill-down. Locating this content in Outlook is ideal given that Outlook is where most attorneys live for much of their time in the office. The browsing capability through the familiar click-through tree format is understood and easy for attorneys to use. The documents all have security so the templates cannot be modified without approval and the public folders are displayed only for those who should have access to those documents. All attorneys who contribute to this document repository are rewarded at compensation time for sharing their content.

Although many other examples of effective KM programs that reward attorneys for sharing exist, we all have colleagues who hoard their intelligence hoping that it will garner them exclusive power and future revenue opportunities. They hope that by retaining exclusive control over key client relationships, intelligence on client needs, and valuable work product they will have a competitive advantage over their colleagues. That way of thinking is from the old world where knowledge was power and where collaboration and sharing were not essential to the growth of all business, including law firms.

This old perspective is one that I would have expected from the US military intelligence establishment, which is why I was surprised to hear Stanley McChrystal’s recent TED Talk on sharing. He describes why US military leadership decided to embark upon a cultural shift from the old “knowledge is power” intelligence strategy to a new “knowledge is shared” policy. McChrystal sought to give intelligence to not only those with a demonstrated need to know, but also those who should know and could make positive use of it. McChrystal notes, “[I]t was [a] fundamental shift, not new tactics, not new weapons, not new anything else. It was the idea that we were now part of a team in which information became the essential link between us, not a block between us.”

In the US security context, the risks associated with sharing information with those who may do us harm are high and must be thoroughly assessed because failure can be catastrophic. Unlike the military environment, however, the risks associated with oversharing in the law firm context are low and largely preventable. Concerns over sharing information with colleagues who may not be experts in the use of a template, may want to undermine the client relationship, or do not fully understand the nature of the work or relationship can all be mitigated by reasonable KM policies and financial rewards for productive sharing behaviors.

I believe there is a compelling business need to share intelligence within law firms to deliver better client service and work product, and those who are able to effectively leverage shared intelligence will become the most powerful and profitable firms over time. If the U.S. military can change its ethos, I believe law firms – even with their lot of skeptical lawyers – can change as well.

Process Innovation in Legal: What It Is and How It’s Done

2 Jun

Picture1Guest post by Scott Rosenberg, Esq., CPA, Solution Group Leader – Corporate Legal Services, and Dan Safran, Executive Vice President – Management Consulting and Legal Solutions, Project Leadership Associates

As consultants to law firms and corporate law departments, our clients frequently ask us two questions: “What can we do to innovate our processes?” and “What process innovation ideas are other people in the legal market implementing?” This post provides a good start for answering those questions.

First, one needs to decide what is meant by “innovation.” Like legal knowledge management, different law firms and departments interpret innovation differently. For this post, we settled on Wikipedia’s definition of innovation as, “the application of better solutions that meet new requirements, unarticulated needs, or existing market needs… accomplished through more effective processes that are readily available to markets.” (http://en.wikipedia.org/wiki/Innovation).

Next, one needs to choose where to start…but, how do you identify which areas to focus on and what criteria do you use to set priorities? We recommend the following criteria for selecting areas ripe for process change:

  • Must be highly relevant to issues the General Counsel or Managing Partner is facing
  • Results in the form of cost savings or practice efficiencies must be readily apparent
  • Solutions must be readily obtainable
  • Solutions should be transformative

The next thing to keep in mind is that innovation serves a business purpose only when it yields value. When we think of process innovation as creating value, we think in terms of the following four strategies:

  • increasing revenues and profits by, for instance, creating new or revitalizing existing services or driving new and improved profits,
  • decreasing operating costs by, for instance, modifying the business model or process architecture,
  • reducing net investment by, for instance, modifying the business model or service composition, and
  • improving value by, for instance, creating new or extending existing advantages or disrupting rivals.

Of these, we find decreasing costs of highest value to law departments, while both cost reduction and revenue enhancement generally are equally compelling for most law firms.

Innovation is a relatively new concept for the legal industry, coming when the market experienced a fundamental shift in purchasing behavior a few years ago as corporate law departments usurped the driver’s seat in their relationships with law firms. Forcing outside counsel to compete through rigorous RFP processes, in-house counsel now call the shots in setting fees for legal services. Law departments have huge pressure to minimize and more accurately predict costs; in turn, law firms are getting squeezed on rates, margins, hiring, and lawyer retention.

The following true story illustrates just how much the market has changed. In a meeting with the Managing Partner of a 500-lawyer firm several years ago, we were introducing the concept of business process automation to the firm at the request of the firm’s COO, CIO, and CKO. In the middle of the discussion, the Managing Partner interrupted to ask, “Excuse me. Are you serious? You want our firm to spend money to innovate and apply efficiencies to our internal processes? Why in the world would we do that…we will only reduce the number of billable hours to our clients! What are you thinking?!” Wow, have things changed! Gone are the 7&7 years (seven straight years of law firm rates increasing an average of seven percent).

So now we have a definition of innovation, the value proposition, and characteristics for selecting potential areas for innovation. With this in mind, one might be wondering how to tell if something is truly innovative. And, if everyone is looking at the same things, how does anything innovative arise? For that matter, how can one ever quantify the impact of innovation?

To better understand the impact of innovation, we have tried to articulate real life examples of process changes that are truly innovative, particularly in terms of revenue and cost-related process improvements.
Starting with the cost-side of process innovation, we have defined three categories of change relevant to corporate law departments and law firms. We will discuss each one of these innovation categories and provide an example of each.

One cost-focused area of process innovation is how corporate law departments are beginning to reduce the number of law firms to achieve economies of scale.

 biggest

The diagram above outlines the process innovation opportunity, its relevance and application, followed by some ideas on how and when to move forward.

While the corporate law department practice of reducing the number of legal service providers they engage may not seem particularly innovative, the processes that some law departments have implemented and adopted, are. Mapping requirements around the relationships the law department actually needs (and modifying them as the needs change), as well as monitoring and giving feedback to the firms are examples of two simple but innovative processes that some law departments have adopted.

We recently delivered an engagement for a large financial institution with a very large corporate legal department. That institution was focused on reducing its provider list. It had been through the process of reducing the number of firms on its law firm panel list. Though the convergence itself led to some minor cost reductions, the corporation was not really achieving the value it had imagined. The law department had also defined and implemented a process for analyzing its satisfaction with outside counsel. However, when we reviewed the law firm evaluations, it was striking that almost all on the panel list received only an average rating. Issues included poor service, internal firm miscommunication, imperfect lawyer assignments, duplication of effort, and multiple internal law firm reviews cycles. What became clear was that culling the list of firms and grading their performance did little to truly affect results.

So, we shared some ideas for communication and collaboration that could be viewed as innovative. Not complicated or bleeding edge, but definitely effective. The department now works with a short list of law firms and sits with each to review its scores and discuss where delivery has fallen short. Expectations are set and confirmed. Both sides come to the table with concrete ideas for how to better communicate and collaborate. Matter budgeting, early case assessment, and post-closing review are included in the workflow. This process is resulting in huge improvements in delivery, satisfaction, and efficiency.

Innovation need not be complex or costly. This corporation took what might seem to be an obvious route, but one few law departments have historically had the structure, process orientation, direction, stamina, or desire to take on to forge closer relationships with their providers. This is a true win-win.

We hope this initial example offers a taste of innovation in the legal setting. While we offer an example above, please watch for our follow-on blog posting that offers other examples of innovation in both law firms and corporate legal departments.

Storytelling in Legal Knowledge Management

28 Apr

Picture1 Guest post by Flyn L. Flesher, Knowledge Management Counsel, Ogletree Deakins Nash Smoak & Stewart, P.C.

Storytelling is one of the evolutionary traits that set humans apart from other species. Other animals can learn by experience or direct observation, but only humans seem capable of learning from stories about others’ experiences. Since the first cave people huddled together in groups, recounting successful hunts and drawing pictures on cave walls to help preserve those stories, humans have relied on storytelling to capture otherwise inaccessible tacit knowledge and pass it along to other group members.

Not surprisingly then, storytelling also has a place in legal knowledge management. Personality studies show that many attorneys may have “a tendency to distance themselves from others and become uncommunicative.” Such a tendency can hinder the spread of knowledge throughout a law firm: if lawyers distance themselves from other lawyers in a practice area, they likely do a poor job of passing along the lessons they have learned.

Fortunately, most lawyers love telling their “war stories.” When pressed, even the most reserved lawyer may have difficulty resisting the temptation to recount past legal victories, innovative litigation strategies that ultimately succeeded, and unusual allegations and fact patterns. Trial lawyers know that weaving multiple pieces of evidence into a compelling narrative can make the difference between winning and losing a jury trial. How can we tap into lawyers’ inherent appreciation for storytelling to capture inaccessible tacit knowledge and pass it along to other members of the law firm?

One effective way of sharing tacit knowledge is to gather around a conference table telling stories over cups of coffee. For example, lawyers in my office meet every Friday morning to discuss hard-won legal victories, difficult legal issues faced and overcome, recent decisions, upcoming legislation and gossip about local attorneys, mediators, and judges. Like the cave people’s gatherings around the fire, these meetings are an opportunity to share in a communal treasure trove of lawyers’ tacit knowledge. Sometimes the old ways are the best.

Sharing experiences within one law office is a good start, but technology enables lawyers to share their experiences with lawyers in other offices across the globe. Encouraging the use of wikis is an effective way to foster enterprise storytelling. Wikis provide a central location for employees to recount success stories, cautionary tales, and project histories. Since all users with access can modify them, wikis support both individual and group storytelling: individuals can recount their experiences, which can be woven into a greater tapestry of stories and viewpoints from different people about similar issues and fact patterns.

Interviewing subject-matter experts can be equally effective for capturing inaccessible tacit knowledge for posterity and the organization’s benefit. For example, our firm has implemented an exciting effort called “OD Emeritus” to capture senior attorneys’ tacit knowledge. The OD Emeritus project involves interviewing our firm’s senior attorneys about their specialties on video so they can pass along their strategies and tips to our next generation of attorneys. The edited videos are used in attorney training and development. Through this program, our firm continues to benefit from the wisdom and experience of top-notch attorneys, even after they have retired from the practice of law.

When lawyers share their war stories, they inevitably impart helpful knowledge that others can apply to their own practices. What is your firm or legal department doing to encourage lawyers to share their stories and tacit knowledge? Do other modern equivalents to fireside chats and cave paintings exist? If your firm isn’t tapping into enterprise storytelling to benefit others in your organization, you may be missing out on a real opportunity.

Can It Be “Just The Facts”? Uncertainty and Verification in Litigation and Our Organizations

7 Apr

Just The Facts Ma'amBy David Hobbie, Litigation Knowledge Manager, Goodwin Procter LLP

I recently read David Weinberg’s Too Big To Know (2012), which investigates the changing meaning of knowledge in our age of ever-increasing connectivity and collaboration. (The full title is “Too Big to Know: Rethinking Knowledge Now That the Facts Aren’t the Facts, Experts Are Everywhere, and the Smartest Person in the Room Is the Room.”) In the opening to Chapter 2, “Bottomless Knowledge,” Weinberg digs into the pre-internet days of obtaining answers and, at the same time, points out an unavoidable feature of information gathering and use that I had not thought of in the same way before — the need to weigh the amount of certainty to which we need to know facts.

Weinberg takes us back to 1983 and asks us to suppose that we want to know the population of Pittsburgh. To find out, we would not conduct our own census; instead, we would likely go to a library and find a (paper) almanac with a population list. We would comfortably rely on that figure for nearly any purpose, particularly if the almanac relied on US census data.  Weinberg notes that our need for some degree of validity continues in the internet age, even though our sources and techniques, not to mention the speed of retrieval, are radically different. Nowadays, we would likely start with Wikipedia, and follow links in the Pittsburgh article to online US Census data if we wanted greater certainty. His main point is that the internet has changed even this fundamental aspect of gathering and assessing information — we no longer need to rely on the one source before us; we can follow or find the direct  source on our own.  This changes the nature of fact-finding and knowledge.

With this simple example, Weinberg raises the idea of factual uncertainty and verification, an idea well worth following into the context of our litigation system and dealing with our legal organizations’  internal information.  Simply put, we need to establish facts and collect knowledge with varied degrees of certainty.  All kinds of standards for certainty exist, for instance, that needed to establish mathematical facts, scientific facts, proof beyond a reasonable doubt, or simply that something is more likely than not to be true.

The US Litigation System and Verification

The US court system reflects our varying need for certainty for different types of decisions. We perceive our system of statutes, regulations, and case law as an essentially unvarying set of rules. The facts of a given case, combined with the case’s procedural posture, control which standard should be applied and the outcome (e.g., when a judge rules on a motion or a jury gives a verdict). Many cases are won or lost as a result of a court’s determination of precisely which legal standard applies to a given set of facts.

By way of example, under the civil procedure rules, the standards for surviving dismissal, or to put in Weinbergian terms, the degree of certainty with which a plaintiff needs to establish facts, increases as a civil case proceeds. The following discussion is a gross oversimplification, does not relate to any particular US jurisdiction, and should not be taken as my (or my firm’s) position on the legal standard of proof with respect to any particular case.

Civil Litigation Stage Verification Standard
Motion to Dismiss Facts plaintiff pleads (states) are assumed true
Motion for Summary Judgment Facts plaintiff can put at issue or contradict by affidavit, document, or discovery statement can lead to denial of summary judgment
Trial Plaintiff must prove facts with admissible evidence that establishes that a fact is, more likely than not, true

Motion To Dismiss

A defendant can attempt to avoid liability very early on in a case, before even obligated to respond to a plaintiff’s complaint, through a Motion to Dismiss (called a demurrer in some jurisdictions). In that procedure, a plaintiff need do no more than “plead” the facts,  meaning state the facts as the plaintiff reasonably believes (and sometimes merely hopes) they are. Courts generally must accept all facts pled in the Complaint as true (with a few exceptions, such as facts in the guise of legal determinations and facts pled that are contradicted by unquestionable documents associated with the Complaint). To avoid liability and obtain dismissal the Complaint’s dismissal, the defendant essentially need only establish that even if everything the plaintiff claims to be factually true were true, as a matter of law the plaintiff has no valid claim and is not entitled to recover anything from the defendant. The court needs no factual certainty at this stage.

Summary Judgment

Later in the case, perhaps after losing a Motion to Dismiss, a defendant may challenge a Complaint through Summary Judgment, which usually comes after gathering facts through the discovery process.  Summary Judgment can lead to dismissal of all or part of the plaintiff’s case in the same way a Motion to Dismiss can.  At this stage, the defendant may contradict the plaintiff’s alleged facts bysubmitting alternative facts by affidavit, documentary evidence, or the plaintiff’s own responses to discovery, such as interrogatories.  If the plaintiff cannot rebut the defendant’s proposed facts through its own affidavits or documents, the court may take them as true for purposes of the Summary Judgment motion. If, however, two incompatible accounts of a conversation, document, or other fact exist  (if it appears as “he-said she-said”), the court will not choose whom to believe and will not grant reasonable inferences in the defendant’s favor;  the facts are determined to be in controversy and Summary Judgment is not granted (assuming that the facts in dispute legally must be established for the defendant to avoid liability). At this stage, the court requires uncontroverted facts to make a ruling.  However, the plaintiff need not prevail in a credibility fight; the plaintiff merely needs to have a credibility contest.

Trial

By the time they arrive at trial,  the parties have incurred great expense and intensively investigated the facts. While the plaintiff generally has the slight disadvantage of needing to prove the facts by a preponderance of the evidence (meaning just barely more likely than not),where facts are controverted or uncertain the decision-maker (either a judge or a jury) chooses whom to believe and essentially determines the facts. Even here, the system tightly controls how likely a fact or reliable an opinion must be to be introduced. This is a key aspect of our system of evidence, particularly expert evidence. The plaintiff can simply plead facts, or submit an affidavit or document making it possible that a version of the facts is true; but, it needs to introduce acceptable factual evidence that the decisionmaker believes more than the defendant’s version to prevail.

As the stages of litigation progress, in parallel with fact development over the course of the case, the plaintiff must prove the facts underlying the legal claims with more and more certainty and receives the benefit of the doubt as to certainty less and less.

Knowledge Management: Uncertainty and Verification Within the Enterprise

Working within the extensive constraints of this system  inclines lawyers to very low tolerance for factual uncertainty and risk compared with other businesspeople (see, “I’ve Got You Under My (Thin) Skin: Personality and Motivation in Lawyers”).  So, three of Weinberg’s lessons should be considered in creating and developing legal knowledge management resources.

Sourcing

One fairly obvious point is that our systems should be designed to clearly identify the underlying sources and  provide other  indicia of reliability, or at least indicate why the information is thought to be reliable. For instance, a system providing a firm’s judicial appearance information should identify the attorneys directly involved, along with information or links to the matter. Better still, the system could provide a way to quickly contact the attorneys. Lawyers are used to linking or citing authority; in principle, the whole common law system requires citation to previous authorities who have considered an issue, forging new ground only where none exist.

With work product (samples and forms), no single sample or form will consititute the “correct fact.” In that sense, factual reliability may be less important than proper context. Is the asset purchase agreement a buyer-friendly exemplar relating to a $100m+ Florida real estate? Or, is it a California biotech startup with two promising products in the pipeline? Is the Summary Judgment motion from a trademark dispute in the United States District Court for the District of Massachusetts or a contract dispute in the New York Supreme Court?  Accurately portraying the context increases the work product’s utility.

Forms and samples should also readily identify the date to help attorneys quickly assess how likely they are to be accurate on the law. The “expiration date” on work product varies significantly depending on the area; for instance, contract law changes very slowly, while the law concerning noncompetition agreements and data security and privacy changes more quickly.

Generally, I am not a big fan of disclaimers (“Don’t use this work product unless you are a real expert or have talked to partner Jane Smith!!”). I find them both ineffective and condescending to the intelligence of our work force (in that we do not hire stupid law school graduates; if any made it through somehow, they should be fired).   On the other hand, providing the context or origin of a resource or sample set can help the attorney determine the resource’s reliability (for instance, “This information is drawn from our matters database, which contains matters with time billed after 2005 and is updated monthly”).

Linking

Weinberg points to the dramatic change in the nature of knowledge resulting from the move away from the printed word to interconnected information. Legal knowledge management systems also should make use of interlinking. Are you creating a custom set of  SharePoint lists and pages to manage unique information about a particular group of products liability cases; why not tie that system into your existing matter portal, document management, and communication systems? Are you setting up a work history report that shows the hours particular people have worked over time; why not tie into your matters database and experience systems?

Internal information can be linked through not only hyperlinks and related information, but also search. Enterprise search can pull together information about firm experience, work product, and attorney expertise linked only by a client/matter number and display it in one portal. A document management system search similarly can pull in information from the finance system to provide richer context for work product search result grids.

Authorship

Another lesson from the internet age is the need for our internal systems to allow for extensive attributed contributions by people inside the firm. Lawyers’ need for certainty and risk avoidance have led them to disparage enterprise social networks and other systems where anyone in the firm can contribute knowledge; except in instances where lawyers feel secure in their expertise or are sharing “neutral” information, those same characteristics have tended to dampen the degree of internal sharing. But, there is no going back to an era of less connectivity, and the aggregate wisdom of a firm can be most efficiently and effectively shared through systems where many attorneys contribute and make their opinions known. Imagine the net effect of multiple endorsements of a given form or litigation checklist by a range of senior legal practitioners.

In other professional organizations, these  kinds of systems increase the ability to find content and experts. They also lead to increased retention, as staff engagement from being able to contribute increases.  We need to other attorneys’ ratings and knowledge of the experience and seniority of the contributing attorney lead to proper weighing of the certainty and relevance of contributions. Working with the internet or sophisticated intranets requires a different, but not inconsistent set of lenses with which to view the certainty of information.

Conclusion

We will never be less connected than we are now. That is normally viewed in the context of people-to-people connection, for instance with respect to mobile and remote access. It certainly is also true now with respect to accessible, verifiable information—a person in a rural area in 2014 with a handheld smartphone has access to more and better information in many ways than government leaders did fifty years ago. And, it is also true with respect to internal information and information outside the firm. Showing why we think something is true or useful within the firm can help us improve our legal organizations’ capability to leverage its collective wisdom.

Value Added Services Part 2: DLA Piper’s Evolving VAS Strategy

19 Mar

ClientsatisfactionGuest post by Chris Green and Megan Jenkins, DLA Piper

In part one, we observed how more and more clients are explicitly requesting value-added services (VAS) in pitch invitations and relationship reviews.  In this second post, we explore one firm’s strategy.

With the traditional legal model under threat, meeting client demands for cost-effective legal services is challenging, to say the least.  At the root, what clients really want is good value – they want to know they have bought a little something more than legal advice.  The good news is that law firms can give good value to clients through extra services that somewhat offset the cost of legal services.

DLA Piper Case Study

At DLA Piper, we have made VAS a key part of our client relationships.  With dedicated client support functions in both KM and Marketing, we apply our international expertise to developing extra services that solve real business issues.  Granted, as a global firm we have a full array of legal and business expertise and resources to draw on in designing and delivering VAS, but many of the services we will look at in this post can be adapted by smaller firms.

DLA Piper offers a range of online tools that help a business reduce risks, enhance collaboration, check cross-border legal issues, improve efficiency, and save money.  These tools include deal rooms clients can share with third parties, webinar recordings, and interactive resources on key business themes like outsourcing. 

One of our goals is to help the clients we work with look good when they are working with their own colleagues by making them aware of potential legal issues that affect their business.  So, we offer an extensive program of training and events to give our clients the latest knowledge and help them demonstrably add value to their enterprises.  In response to client feedback, we provide these programs in user-friendly, flexible formats, such as webinars.  We also provide timely know-how through bulletins, blogs, and hotlines. 

A Win-WIN Situation

With some key clients, we provide secondments and consultancy from various support teams, including KM.  Our larger clients struggle with many of the business challenges we face, for example managing teams in multiple locations and sharing information effectively. Because in-house lawyers’ knowledge needs are quite similar to those of a firm’s lawyers, law firms can offer products and services that directly address in-house counsel’s concerns.  Although some in-house legal teams are close in size to law firms, these teams typically get far less tailored support from their company given that they are not the focus of the clients’ business.

DLA Piper’s WIN (What In-house lawyers Need) program, which recently earned us the Financial Times Most Innovative Law Firms in Client Service Award, combines a series of events, checklists, online tools, and forums offering knowledge, support, and networking to address the technical, commercial, and personal challenges of practicing law in-house.  Feedback from our clients has been excellent and many are now directly involved in developing the program to keep it relevant to them.

We continually review client needs and feedback, as well as monitor trends in the legal press and client requests, when tweaking existing and developing new tools and services.  For instance, when our clients asked for more flexible training programs, we created a webinar service that pulls together recordings of DLA Piper’s experts across the globe. 

Selling VAS

Yet, our services matter only if our clients know about them and promotion needs to come primarily from the lawyers who work with our clients.  Our lawyers can effectively promote our VAS to clients only if they become fully aware of and understand those services. Our Using Value Added Services to Solve Client Problems blog introduces and promotes best use of our client support services, such as VAS and account management.  To encourage repeat visits, KM and Marketing commit to posting new content every two weeks.  We encourage guest bloggers from other client support teams, including the wider KM team, Marketing’s client services and pitch teams, client account managers, partners, and IT’s client technology services team.  Sharing examples of client support and feedback sparks ideas to help others build relationships with clients and breaks the broad range of VAS into manageable chunks for our busy colleagues to digest.

Making it easy for client partners to promote VAS and give clients relevant information is vital, so we have developed client-friendly introductions and email templates advising clients of frequently used services. This not only streamlines the process, but also ensures delivery of consistent messages.  We create lists of cross-practice training topics and help client teams package these into bespoke training for clients.  An internal collection of DLA Piper client training materials is maintained so new tailored training materials for clients can be produced quickly and easily.

Along with our blog, the firm intranet contains comprehensive information on all of our VAS, prominently displayed within the intranet’s client section.  We also maintain and regularly update a VAS client brochure and accompanying internal guidance notes.

KM’s Crucial Role

The KM team understands what our colleagues need to improve their client relationships and offers solutions to suit them.  KM works with Marketing and client relationship teams within the business to ensure that each client gets the most appropriate services.  To continue providing a range of options, we try to fill more knowledge gaps by tapping into our geographic reach and involving legal and other professional experts. 

To support individual client needs, we work closely with client relationship partners and marketing account managers.  We engage with sector and client marketing teams to ensure we offer the best service to our key clients.  Naturally, we work closely with IT to build out technology solutions, such as deal rooms and collaboration tools, for our clients; KM also benefits from IT’s marrying our system with our clients’ IT to provide coherent service.

The wider KM community within the firm alerts us to both client needs and ad hoc services that have cropped up that we could in turn offer to other clients.  Professional support lawyers and research experts understand the current legal issues in their practice areas and help marketing repackage the information for client consumption.

Unexpected Benefits

Offering clients robust VAS brings many unexpected, intangible benefits. Developing VAS fosters new international and cross-team working relationships, both internally and with clients.  Clients enjoy being involved in pilots and shaping future resources and services.  People from different groups, sectors, and countries can be brought together, often for the first time, through VAS projects. Moreover, client-facing knowledge tools can supplement internal know-how, making internal collaboration more efficient.

The relatively small client KM team’s knowledge, though concentrated, is shared with client teams who are starting to develop their client relationships more intensively.  Every client relationship develops over time and being able to say that, “Other clients in this sector use these services” can quicken the pace.  Collaborating with clients on their needs is particularly powerful and allows us to devote our resources to developing new and valuable services together.

Client KM is now a standard part of pitches and we regularly recommend suitable services to client teams.  We find that if a client relationship starts well, it generally develops well and this has a direct impact on the bottom line.

A variation on these two posts originally appeared in Legal Knowledge Management: Insight and Practice, Ark Group/Managing Partner, 2013.

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