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.


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.


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”).


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.


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.


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.

Value Added Services Part 1: Empty Promise or Real Benefit?

5 Mar

gift Guest post by Chris Green and Megan Jenkins, DLA Piper

As law firms increasingly recognize that what their clients buy is their firm’s knowledge, legal knowledge management (KM) is becoming more client-facing.  Firms now see a very close link between the knowledge the firm relies on and their clients’ desire for value added services (VAS). Since clients tend to have fewer internal legal resources to draw on, sharing the firm’s know-how with clients can be a big win for a firm.  For many years, savvy firms have given clients extras in the form of legal updates and training programs; today firms are becoming more creative and generous with the services they give for free to the extent that clients have come to expect these perks as standard.  Evidence of the growing trend for bigger and better VAS abounds in the legal press, conferences, and the range and sophistication of client requests in RFPs and relationship reviews.

 Understanding What Gives

In an industry built on selling knowledge, giving knowledge away for free may seem counter-intuitive.  So, how did this notion of VAS arise and take root?  It likely started with business clients’ need for their legal advisers to be more like business partners who can help with strategic as well as legal decisions. Law firms quickly realized that to do this well, they would need a rich and deep understanding of their clients’ business needs, an understanding richer than possible in relationships where clients are  instructing different lawyers on each transaction with the firm.  Clients are more likely to share key strategic information with advisers they trust and building trust takes time and investment. Clients play their part through panel appointments that give firms access to the broader context that fosters solid relationships. Likewise, law firms must grasp every opportunity to learn more about their clients’ businesses and VAS create opportunities to sit and talk without the meter running; they encourage clients to share their wider business focus and plans without fear of racking up a hefty bill.

 Timing Is Everything

 Typically, clients bring work to a firm when faced with a legal problem.  Unfortunately, by that point, it may be too late to craft the best outcome for the longer-term business strategy. To be effective business advisers, firms need to keep their clients’ business goals top of mind and proactively pre-empt legal problems to help the business progress.  More often than not, this requires taking action well before legal issues crystalize. Business decisions are made for commercial reasons by directors and executives concerned about whether a change or investment is right for their business at that time.  VAS, such as access to a law firm’s online tools, can help clients analyse their business options before they even think of involving lawyers directly.  Clients have long recognised value in being able to pick their lawyers brains on small issues free-of-charge; being able to similarly discuss longer term, strategic issues with their lawyers could prove vital to the clients’ business health. 

Getting an Edge 

Law firms constantly struggle with how to best differentiate themselves from other firms.  Lawyers who understand their clients’ businesses in depth are better equipped to ask the right questions and demonstrate how their services fill gaps in ways competitors cannot.  Marketing efforts tailored to the client’s individual or business sector priorities speak volumes.  A firm’s long list of services and sheer size no longer impress today’s sophisticated clients; rather, they want to see how the firm’s services are built on knowledge and experience with the client’s business and industry. 

Most firms offer a range of VAS, some of which have existed for decades (legal updates, training, and secondments, for instance) and some more recent additions (online tools, blogs, apps, and consultancy, to name a few).  New ideas crop up frequently, especially with technology making it easier to deliver free legal and commercial services to both potential and existing clients.  All of these extra services open new opportunities for law firms to start a dialogue with clients and help them solve more business problems.  By filling a know-how, resource, or service gap in this way, firms demonstrate their broader expertise and differentiate themselves. 

A good range of VAS includes a mix of legal information and tools designed to help clients make business decisions and solve practical issues. These services also help law firms meet their clients’ challenge to streamline and enhance our interactions with them. For example, clients who first complete a structured online checklist are more likely to better instruct the lawyers working on a new deal for them, thereby increasing efficiency, effectiveness, and profitability.  

Benefits far exceed cost 

Tailoring the kinds of VAS offered to each client’s particular circumstances creates a bespoke offering for the client and ensures that the law firm spends its own resources on services that genuinely benefit each client.  Developing and sharing VAS also helps colleagues understand each other’s business and expertise, which in turn increases cross-selling as colleagues gain confidence in introducing each other to the firm’s clients. Vital to any firm’s business, active cross-selling is harder to achieve the larger a firm grows.

These benefits are critical in today’s challenging legal market where firms are competing to increase market share and create lasting client relationships in the face of shrinking demand.  All firms wants repeat clients who seek their services on a full range of legal issues.  A good roster of VAS helps firms continually demonstrate their business acumen and commerciality to business clients.  

In part two, we will look at how one firm has used a VAS strategy to differentiate itself in the market for legal services.  A variation on these two posts originally appeared in Legal Knowledge Management: Insight and Practice, Ark Group/Managing Partner, 2013).

The First Thing We Do Is Kill All the Accountants

19 Feb

Picture3 Guest Post by Gordon Vala-Webb, National Director of Innovation and Information, McMillan LLP

Lawyers like to think that the law is different, their work is different, and even their personality type is different from everyone else’s (see Dr. Larry Richard’s work on this last point). Back in 2006, David Maister, the grand-daddy of modern thinkers on all types of professional service firms, said, “After spending 25 years saying that all professions are similar and can learn from each other, I’m now ready to make a concession: Law firms are different.”

After all, can anyone really imagine Shakespeare, in Henry VI, having one of his characters say “The first thing we do is kill all the accountants”?

But accountants and lawyers (and other partnership-based professional service firms), now more than ever, have much more in common than you might think; and this raises significant implications for law-firm KM work. Having led KM efforts in a large accounting firm (PwC, previously PricewaterhouseCoopers – Canada) and having since left the dark side to work in a law firm, I think I can offer some useful advice and perspective.

The combination of a competitive market, professional services (based on a mix of technical excellence, external oversight, trust, and broader business knowledge), and partnership-owned business model, drives substantial similarities across all professional services firms.  From the KM vantage point, the essential similarity is the need to reuse work product (sometimes cleansed and reworked), locate experts (as in, “Does anyone know about…”), and have high-level conversations quickly and efficiently (to, for instance, get answers or explore an idea).

Two fundamental differences have distinguished law firms from other professional service firms.  First, those other firms tend to be much larger than firms and this remains largely true.  Second, and more importantly, other professional service firms have been engaged in a fight for market share for much longer than most corporate law firms have.  Now law firms – that formerly just shared the ever expanding pie of market growth – are facing intense competition for work (starting in 2008 in the US and since 2012 in Canada).

Larger size coupled with more intense competition has driven non-law professional service firms to:

  • invest earlier and more heavily in KM-related projects (for example, expertise-location, search engines, and intranets);
  • focus KM efforts on supporting marketing and business development outcomes (for instance, client account dashboards joining financial, business development, and client news together and RFP-production through standardized resume and boiler-plate libraries);
  • drive efficiencies in those KM operations (through outsourcing certain basic functions, using contingent on-call contractors, and developing value-contribution measures, to name a few);
  • link business processes with content stores (to reuse content or guidance) and groups or communities of practice (for continuous improvement);
  • explore emerging areas of KM, like enterprise social networking platforms (note that every major consulting and accounting firm has launched a platform – or plans to very soon – while most law firms have yet to move beyond experimentation);
  • provide tools and capabilities that support their professionals in finding and filtering news efficiently and effectively (through news aggregators or filters), and
  • deliver a richer mobile experience.

So, assuming the experience in other professional service firms is something to go by, what does the future hold for KM people within law firms?  We will need people who can implement and support enterprise social networking suites.  We will need to build much tighter relationships with both Marketing and Business Development,  as well as Professional Development and Training.  More KM people will be either outsourced or contingent on-call contractors (for instance, for certain forms of legal research).  Firms will directly employ fewer KM leaders as organizations look to combine for economies of scale or strategic advantage.  And, in-house KM people will be more business savvy and technically expert in KM and less likely to be former lawyers.

Yes, law firms are different; but, whereas that difference used to be akin to apples and oranges, it is now much more akin to McIntosh and Red Delicious.

Leading the Charge to Change: The Importance of KM’s Familiarity with the Growing Pains that Come with Innovation

6 Feb

LeadGuest Post by Meghann J. Barloewen, Knowledge Management Counsel, and Marcy McGovern, Littler   CaseSmart, Program Director for Litigation, Littler

When knowledge management teams expand, new KM lawyers often are recruited from within the law firm.  Recruiting internally does offer distinct advantages, including knowledge of the firm’s culture and priorities, experience practicing with one or more of the firm’s business lines, and (one hopes) general loyalty and good will toward the firm. Coming into a KM role already understanding the firm’s strengths and weaknesses can place new KM Counsel ahead of where external new hires would start, meaning the KM department probably will need to invest fewer resources on training the new team member. 

KM Growing Pains

However, shifting from practice to KM can represent a big personal adjustment for the attorney making the move. While practicing attorneys focus on litigating cases or directly advising clients, KM lawyers are focused inward on firm process. Although this new role can be exciting, new KM lawyers will likely experience some professional growing pains in addressing novel challenges. Attorneys themselves freely admit that many in their profession have “type-A” personalities. Although practicing attorneys devote much time to innovating creative solutions for clients’ legal issues, many are averse to changes in their own firms’ processes and how clients are served. KM lawyers in the US face the added challenge of having a less defined role and career trajectory than their colleagues in countries that have more fully embraced KM as a discipline. 

But new KM lawyers’ growing pains really are no different than those a firm experiences at a macro level when trying to re-engineer processes. Comfort with the known and resistance to testing new albeit potentially more profitable ways to practice prevail among attorneys. Practice innovation naturally raises questions like these: 

  • How will offering our clients online services affect my practice?
  • Why should I follow a checklist for a pleading when I already know how to draft a pleading?
  • How will a change in the firm’s structure affect my role as a shareholder, of counsel, special counsel, or associate?

From their first year in law school, attorneys are trained to question everything; it stands to reason, then, that many innovative ideas never make it past brainstorming because the ideas are questioned into oblivion.

Remember – Change Is Hard 

KM lawyers might benefit from recalling their own growing pains when working with colleagues who exhibit similar hesitation to projects. Having experienced the same trepidation when they transitioned from practitioners to innovators, KM lawyers should never forget that change is hard and takes time.

Persistence is the key.

When it comes to profitability, complacency and a “wait and see” approach put law firms at risk of becoming obsolete. Clients increasingly demand new approaches to client services; firms must recognize that sticking with what succeeded in the past could lead to failure in the future. KM lawyers must plan to combat general aversion to change head on, while keeping in mind that not all innovative ideas can be executed in practice. 

Innovator’s Pre-Launch Checklist

Before launching any innovative project, fully considering the following questions helps: 

  1. How will this project and its likely result affect the attorneys’ day-to-day practice and the firm’s bottom line?
    • Are we asking attorneys to assume non-billable administrative tasks to help our marketing efforts?
    • Are we asking them to test a product that will help them complete billable work?
    • Are we about to replace billable hours with a technological resource to make attorneys more efficient (like document automation, for instance)?
  2. Given the likely impact on day-to-day practice, what concerns are attorneys likely to raise?
  3. Do we have solid objective responses to their likely concerns and have we weighed the project’s costs and benefits sufficiently to put those concerns to rest?
  4. Can we point to the success of similar projects in other industries, such as accounting and engineering, or at other law firms to help address general aversion to change?

Champion Change

Firm attorneys averse to change might especially shy away from projects whose benefits are only likely to be felt gradually over time, rather than projects with a real prospect of bringing immediate financial return (for example, one that would showcase a practice group’s depth of expertise but that does not immediately present new clients or work).  However, even with a project that lacks immediate gratification, if the project is a viable one supported by the firm, KM can champion it and effectively manage change so the project can move forward as efficiently as possible.  Fully considering the questions listed above will enable KM lawyers to face resistance, lessen the growing pains, and persuasively explain why investing in the project is wise.

Lost in Translation? KM Counsel Can Help

6 Dec

Rosetta_StoneGuest post by Meghann Barloewen and Marcy McGovern, Littler Mendelson

It’s no secret that law firm attorneys, who are critical subject matter experts for knowledge management, can be deterred from knowledge sharing when the structure of their compensation is, in large part, based on their individual revenue-generating efforts and not on their contribution to the advancement of the collective knowledge of the firm and its attorneys. So how does one get legal experts to contribute to non-billable projects geared towards improving firm processes and practices, developing products for clients, or supporting marketing initiatives? Unless there is a way to credit the attorney’s time for the non-billable project (and to have that credit count as a 1-1 in terms of compensation), firms may find it difficult to deliver a new product, craft a proposal, or gather sufficient substantive information to provide to the operations team who is working on a non-billable process improvement project.

One approach has been to credit billing attorneys with a “bank” of research and development non-billable hours toward an annual billable total (i.e., a set amount of hours that can count toward the attorney’s billable annual requirement). Littler, by contrast, pairs experienced Knowledge Management Counsel with project teams.  The KM Counsel bridges the gap between the operations team and those with substantive legal knowledge. If the operations team needs some substantive insight to translate how their work will impact legal process, whether the information they are reviewing is accurate, or why certain steps should be taken, the KM Counsel on the team can provide the substantive insights in order to effectively facilitate the project.

With eleven full-time KM Counsel, who have an average of 13 years of labor and employment law experience, the KM Department at Littler is well equipped to provide substantive insight in order to facilitate the timely turn-around of firm initiatives. We address here three common areas where KM Counsel collaborate across departments to help advance firm objectives, product development, information technology, and marketing.

Product Development

When Littler sets out to develop a product, it matches up operations teams with practicing attorneys and KM Counsel.  The various roles filled by KM Counsel on these teams can include:

  • Identifying areas where efficiencies can be gained,
  • Informing billing attorneys of existing resources, and
  • Working directly with the operations team to answer questions and clarify information about the substantive aspects of the project that have been discussed by “subject matter expert” billing attorneys.

This structure has improved Littler’s successes in delivering products to the marketplace on an expedited schedule. On some projects, a considerable amount of the substantive legal knowledge can be provided directly by the KM Counsel, with the billing attorneys providing final approval of a product or redesigned process. However, even if the KM Counsel is not herself a subject matter expert, having a legal knowledge base is invaluable in knowing the right questions to ask of the billing attorneys who have limited amounts of time to spend on the project. Combine this legal knowledge with KM’s ability to take on more of the share of project management requirements, and KM Counsel can substantially lighten the load of the billing attorney on product development.

Littler’s Healthcare Reform Advisor (“HCR Advisor”) is a good example of this process in action.  The HCR Advisor is an on-line tool, accessible on, that employers can use to assist in determining whether or not they will be subject to penalties under the employer responsibility requirements of the Affordable Care Act (“ACA”). In a collaboration between Neota Logic (the software developer), KM Counsel, and the subject matter experts (billing attorneys), the HCR Advisor was developed in just three months – despite its subject matter complexity. KM Counsel worked with the billing attorneys to become familiar with the subject matter and then with Neota Logic to map out and build the on-line tool. Having KM Counsel in a position of learning the software process saved the billing attorneys the time of having to do so themselves, and it allowed them to focus on the substance of the tool versus the technical aspects of the tool. In this dual role, KM Counsel was able to successfully translate that process so that (1) the billing attorneys understood the type of information required to build the system and (2) Neota Logic could build the system.

Information Technology

All Littler KM Counsel are former labor and employment practicing attorneys. Accordingly, KM Counsel are often asked to consult with the IT Department on technology developments and the potential user experiences. Engaging KM Counsel to conduct an initial test of beta software or preview potential technologies for firm-wide deployment is a win-win for Littler. It permits our IT Department to receive substantive feedback from experienced attorneys without unnecessarily impacting the revenue generating arm of our firm – our billing attorneys. Moreover, aligning KM Counsel with IT projects often initiates discussion for uses of technologies that can facilitate greater collaboration at the firm, thereby increasing efficiencies, quality, and client service in practice. Of note, KM Counsel have consulted on the firm’s use document automation software, information management software, and time entry systems.

Marketing Initiatives

Littler aligns KM Counsel with marketing professionals to help coordinate marketing-related initiatives. KM Counsel provide content and help identify key developments that should be the subject of firm publications. Collaboration between these departments permits Littler to plan and prepare for covering major legal developments in a systematic way and engage practicing attorneys in an organized fashion. Beyond our publications, KM Counsel regularly partner with marketing professionals to help tailor client seminars, proposal related content, and other strategic initiatives.


As the legal market continues to demand innovations in practice and the delivery of legal services, we foresee the role of KM Counsel as a “translator” expanding.  KM Counsel provide a key link between the firm’s subject-matter experts and those executing innovation. This exciting new role for KM professionals is both challenging and rewarding – so ask yourself, do you know of a firm project where key constituents seem “lost in translation?” If the answer is yes, it could serve as a new opportunity for you as a KM professional to add value to your firm.

Working Together To Work Better: Aligning Professional Development and Knowledge Management

18 Nov

Working-Together-738577Guest Post By Mara Nickerson, Chief Knowledge
Officer, Osler

Knowledge management and professional development (PD) serve closely aligned objectives at law firms – while knowledge management tends to focus more on legal substance and legal technology, and professional development more on skills and capacity development, certainly both help lawyers gain the information and knowledge needed to practice efficiently and effectively. In most law firms these two departments are not connected and often operate in silos.  However, as professional development departments start developing on-line, just-in-time, training, there are more opportunities for them to work together and ensure lawyers have access to integrated topical resources.

Videos & Podcasts

What are these on-line trainings? At their most simple form, PD provides videos of live programs, usually synchronized with the PowerPoint. But many PD groups are also now creating short podcasts, video or audio that can be downloaded to a mobile device. These podcasts might be a short lecture or set of practice tips focused on a specific topic and ideally aimed at a particular role. Working together KM and PD can package these videos and podcasts with links to the relevant model precedents and other related resources in the KM system, including matter pages, legislation, research, firm commentaries or blogs. Depending on the topic, PD may also have pulled together other resources such as background articles that should be included.

Even if the firm has enterprise search that would enable a user to find all of the KM and PD resources, it can still be more efficient for users if KM and PD have packaged the most useful resources together, filtering out some of the “other stuff” that comes up in search. And at the very least KM should work with PD on taxonomy to ensure PD is applying the same metadata to its PD content to ensure that when a user does use enterprise search, the best content is delivered.

Web 2.0

PD is also starting to leverage Web 2.0 tools, such as wikis and discussion forums, for learning purposes. Consider the implementation of a major new piece of legislation. A live program, or even a podcast, will be a static tool, reflecting the presenters’ knowledge at the time the program was held or created. But with a new piece of legislation much of the learning will come over time as lawyers start to interpret it in the context of real client issues, and as they see the courts and regulators apply it.

Working together, PD and KM can integrate PD’s program resources, KM resources and a discussion forum in which the lawyers can discuss the issues they come across. Perhaps include a wiki page to create an on-going live, flexible summary of what has been learned, linking to articles and commentaries as they come out. The page becomes a live learning environment.

Interactive Training

Some PD teams are also starting to create more interactive on-line programs in which users are required to answer questions and interact with the program, either throughout or as a quiz at the end.  This format could be a useful tool for training juniors and perhaps legal assistants on using the KM systems.

Better Together Than Apart

Some KM teams are doing these things without the involvement of PD as they switch their focus from pulling information together, to enabling the creation of knowledge.  However, I still encourage KM to reach out to PD see what they have and are doing and ensure, as an organization, that the two groups are efficiently working together in support of the lawyers, and not duplicating efforts.


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