Archive | Uncategorized RSS feed for this section

KM as Agents of Adoption

31 Oct

agentBy Gwyneth McAlpine, Director of Knowledge Management Services, Perkins Coie

Like many of you, I often start my day scanning the Pinhawk Law Technology Daily Digest while waiting for the coffee to kick in. The three-part series called “Why Do Law Firms Struggle With Strategic IT” (see part I, part II and part III), by David Houlihan, Esq. of BlueHill Research, caught my eye. It dissects why law firms are not doing more in response to calls for innovation and disruption, possible obstacles preventing the shift to more strategic IT, and thoughts on how to overcome those obstacles. Blame it on a lack of caffeine, but I immediately interpreted the series through the lens of my current problem: adoption of Knowledge Management resources and productivity tools. Like the IT departments discussed in the series, KM programs often roll out new tools and resources with hopes for high adoption only to have those hopes fall short in reality. Low adoption makes it difficult to show return on investment and get budget for the next projects, even those that promise innovation and disruption. If adoption is essential to continuing investment, how can we improve it?

The Adoption Challenge

Because attorneys are timekeepers, the time they spend on nonbillable activities – such as sharing feedback, participating in pilots, reading rollout communications, training, and changing their behavior – roughly equates to time spent on the couch. This causes resistance to change, lack of engagement with technology, and no time for learning about possible solutions to their business problems. So our efforts to teach attorneys how new innovations can help their practice often fall on deaf ears. With the pressure they are under, who could blame them? Can a robust adoption program conquer such obstacles?

Objectives of an Adoption Program

Strategies that tie our solutions more closely to attorneys’ problems could be the answer. The goal is to insinuate solutions into workflows to shift the burden from the attorneys back to ourselves. Ask yourself whether you are addressing the following objectives across the board and building on what works in your firm.

  • Focus on Ongoing Education, Not Rollout. The rollout fanfare is somewhat self-serving on our part. We want our project to be over and so we inundate users with rollout communications and training when it is most convenient for us – the end of our project. What happens next tends to be fairly ad hoc. Since no one remembers anything during a rollout, reduce the commitment to rollout and redirect that time and effort to ongoing adoption activities.
  • Go to the Attorneys. Stop assuming that attorneys read and digest our emails. We need to visit the attorneys where they are, in real-time. That means walking the halls and popping into offices, making time to attend and participate in regularly scheduled practice group and office meetings, and coordinating with Attorney Development to be part of their CLE-accredited programming. Though a huge time commitment, this direct touch can pay off. Live conversation often brings unexpected issues to light and you can shift your focus accordingly to make the time invested even more valuable and relevant.
  • Target the Audience. Preparing one set of materials for training and ongoing communications about our resources and tools is easy. But, different practice areas really are…well, different. Examples relevant to one group may not resonate with another. Our communications (whether written, live, or recorded) must be tailored with examples and situations for each practice group so that, for instance, litigators can see how your great new solution will help them litigate without the noise of the solution’s transactional application.
  • Marketing and Promotion. Take a marketing approach to adoption. While trying to convince someone to use your widget, you are actually educating them about it.  Maybe some enticing brochures that quickly and effectively convey the what, why and how of your resources or a trade-show booth at attorney retreats to show off the latest and greatest would serve your cause. We do a booth at our Partner Planning Conference to showcase a variety of services (with giveaways for visitors, of course!) and, after some growing pains, we are seeing some success in getting the word out about new resources.
  • Tie to the Larger Business Environment. We are often more current on changes in the legal industry that affect the business of law than our attorneys are. Think of how, for example, AFAs, the legal tech audit, and legal project management (LPM) have changed the conversation in recent years. When promoting our resources and tools, we need to include the context of the larger business environment so our attorneys understand the importance of evolving their practice. When working with practice groups on developing their forms and precedents libraries, consider conveying the strong client demand for LPM and the vital contribution KM resources paly in LPM’s success. It is not just about individual legal skills anymore, my friend!
  • Be the Concierge. Our attorneys do not care which department sponsors which resources. We should ensure KM knows about the full panoply of offerings across the firm and acts as a concierge. When attorneys have problems, do not make them forum shop; rather, help them with the solution. In this way, KM acts as an advisor and problem-solver.  When we match solutions to problems, adoption follows.   And, this leads to my final point…

Be an Agent of Adoption

I have been a little vague in talking about “resources and tools” to allow you to assume I have been talking only about what is in your world. Actually, I think KM professionals are ideally suited to take on broader adoption activities. While we need to learn about and tackle adoption challenges for our own KM resources and tools, are we not equally well-positioned to bring value to attorneys by matching their business needs with other technology tools and firm resources that enhance their productivity? Assuming many KM programs have an ultimate goal of increasing attorney productivity, does it matter whether what makes an attorney more productive comes from KM, IT, or Finance? To become an agent of adoption, consider developing a program that targets not just your own department’s efforts, but also anything that enhances attorney productivity. Being an attorney-adoption clearinghouse puts us right in the middle of bringing meaningful solutions to attorneys.

What adoption challenges do you face? How have you successfully overcome these challenges? Are you an agent of adoption in your firm? Please contribute your experience and ideas in the comments below!

ILTA KM Peer Group Steering Committee Opportunity

5 Aug

Guest Post by Chris Boyd, Peer Group Vice President

ILTA’s Knowledge Management Peer Group Steering Committee has an opening and we’re looking for an interested volunteer to fill it. The KM peer group works with ILTA, fellow peer groups, and regional leadership to deliver programs and publications on how law firms and law departments can use KM to help their attorneys and other professionals be more effective and efficient and ultimately deliver more value to their clients. We enjoy working together to develop conference sessions, put on webinars and local meetings, encourage the use of the e-group, publish an annual white paper, post on this blog, collaborate with vendors on peer-focused programming, and otherwise capitalize on ILTA’s excellent resources to facilitate peer knowledge sharing and champion KM.

Our steering committee has eight people, and one of our long-serving members has decided to step down, so we are looking to fill that slot. Our departing member is from Washington D.C., and because we collaborate with local KM groups and each have an assigned regional ILTA group to work with, we are especially interested in applicants from ILTA’s Middle Atlantic region (Delaware, D.C., Kentucky, Maryland, Pennsylvania, Tennessee, Virginia, and West Virginia), but that is a preference rather than a firm requirement.

Click here to learn more about Steering Committee member qualifications and responsibilities, as well as to submit your application. Please also feel free to contact me at cboyd@wsgr.com or 650-354-4195 if you have any questions.

ILTA Conference KM Track Preview

25 Jul

Imagine Guest post by David Hobbie, KM PG Steering Committee, Conference Committee Liaison

The amazing annual conference put on by ILTA in Nashville, Tennessee is less than a month away!  This post lays out the speakers and substance for the six sessions on the “formal” km track, that organized by the KM Peer Group itself–although, as in other years, numerous other sessions are being organized by knowledge management professionals, address knowledge management concerns, or are otherwise of interest to the knowledge management community.  I’ve already located a few time slots when I would like to clone or perhaps “bi-clone” myself, so I could be in two or three places at once.

This year the KM track is grouped early in the week, with four sessions Monday August 18 and one each on Tuesday August 19 and Wednesday August 20.

The KM Peer Group is also hosting a reception on Tuesday evening at 4:30 PM in the Governor’s A Foyer, in the time between the last session of the day and the annual Distinguished Peer Award ceremony (the reception is generously sponsored by HighQ.)

Tweeting during the sessions can leverage the #ilta14 hashtag (already seeing significant amounts of vendor traffic) and the session hashtags, which are #kmpg1 through #kmpg6 and will be announced at the beginning of every session.  Please note that twitter searches on the session-specific may reflect previous years’ information, for a while at least.

1. Expert Systems, #kmpg1

Title:  The Rise of Expert Systems: Threat or Opportunity to Traditional Legal Services?  

Description:

It is no longer necessary to build technology that “bakes in” legal wisdom to deliver fact-based advice. Instead, expert systems for delivering legal advice are coming more into play, led by providers, client-facing document assembly products and budget wizards. What types of legal market needs do these kinds of products meet, what opportunities are ahead for law firms and legal departments, and how can law departments best harness the collective wisdom of their and their law firms’ lawyers?

The first session after the keynote, Monday at 11 AM in “Governor’s B,” features an innovative technology, “expert systems,” which has only recently made the transition from laboriously developed custom one-off creations to mobile or intranet applications, developed on an expert system platform (read more about expert systems on my Caselines posts here and here.)

Speaking at the session are Neota Logic President & Chief Strategy Officer* Michael Mills, whose company Neota Logic created the platform for creating expert system apps, Scott Rechtschaffen, CKO at Littler Mendelson, who has already publicly leveraged expert systems with the Health Care Reform Advisor, and Professor Tanina Rostain, who runs the Georgetown Law’s Iron Tech Lawyer competition that also leverages expert systems technology for the benefit of legal services. The panel will be moderated by Ginevra Saylor.

2. Security, #kmpg2

Title: KM, Security and Compliance: Fist Fight or Compromise?  

Description:

Clients demand compliance with strict information security guidelines vis-à-vis protection of legal work product. But the “need to know” security model could hinder information access and collaborative KM processes, including, but not limited to, accessibility of enterprise search. Clients are under regulatory pressures and are cracking down on what they consider lackadaisical law firm security. Is there a right balance or compromise that can address the concerns of all involved — clients, KM and security officers? Come watch the fight unfold!

The next KM session, after lunch on Monday at 1 PM, in the same room, “Govenor’s B.” Security is an increasing concern for law firms and legal organizations. Pressure to enhance security has flowed from federal and state regulators to corporations and to corporate legal service providers such as large law firms.  Many approaches to security directly or potentially conflict with knowledge management practices and goals, such as the ability to search across client matter files. We’ll hear about this issue from the perspective of key stakeholders on all sides.

Speakers include moderator Tim Golden of McGuireWoods, James Tuvell of Fox Rothschild, Dawn Radcliffe of TransCanada Pipelines, and Jim Higdon of Vendor Direct Solutions.

3. Experience, #kmpg3

Title: Leveraging Experience To Enhance the Bottom Line: New Information and New Tools

Description:

Firms are under pressure to collect more information about firm experiences and new kinds of information that relate to estimating the expected costs of new matters. New processes, information systems and staff are needed to meet this challenge, which will ultimately result in accurate pricing, effective business development and the efficient provision of legal services. Come hear more about how experience management can enhance your firm’s pricing, budgeting and KM efforts.

Next up, in the same room at 2:30 PM, is a session highlighting new uses for what is in some firms old technology and business process.  Come hear how some firms may have found a way to uncover the “gold” hidden in the firm’s experience and financial information.

Speakers will address key requirements for effective experience databases, when used primarily for pricing purposes rather than marketing purposes; discuss new technology that is being leveraged for experience management; and have a robust discussion about different approaches that different organizations have taken to this old area of inquiry and work that has new meaning in today’s legal industry.

Speakers include Toby Brown of Akin Gump, Andrew Pauluhn of Bryan Cave, and Matt Laws of Crowell & Moring.  I will be moderating.

4. Failure #kmpg4

TitleIt’s a Failure Party! How To Celebrate These Learning Opportunities

Description: 

Embrace productive failure! We’re not celebrating failure itself, but rather the ability to learn from it. While some tend to be reluctant to acknowledge or follow up on their mistakes, we know this is not an ideal strategy. Come listen to several successful legal information management professionals tell stories about their least successful projects, what they’ve learned and how to turn your last failure into an opportunity for future success.

Same room, 4 PM.  Learning from past experiences, good and bad, is an essential component of knowledge management and project  management.  Experienced panelists will offer perspectives on learning from failure from the military (Col. Scott Reid (retired), formerly leader of the Army JAG Corps KM, now of Littler Mendelson), and KM (John Gillies of Cassels Brock & Blackwell LLP and recent conference co-chair Rachelle Renegal of  Patterson, Belknap, Webb & Tyler), moderated by Scott Rechtschaffen.  Do not fail to attend or you might regret it!

5. Gamification #kmpg5

Title: Gaming the Lawyers: Driving Adoption, Contribution and Change 

Description:

Motivating people to change their behavior often comes with KM territory. Can gamification help change behavior by making the change competitive and fun? With gamification moving beyond a fad in the corporate world, this session will explore a few examples of successful gamification in aid of KM programs inside legal organizations. Join us to see if we can motivate you to brainstorm and share ideas on how to apply gamification in the context of legal KM. Competitive ILTAns may race to chime in!

The next KM track session is an extended Tuesday morning session at 11 AM in Governor’s C/D.  Rather than offer my own gloss, I link to moderator Milena Higgens’ recent ILTA KM blog post on the session.

Speakers are Raul Taveras of Fish & Richardson,  Pamela Woldow of Edge International, Scott Reid of Littler Mendelson, and Rubsun Ho of Cognition LLP.

The KM Peer Group reception is Tuesday evening, 4:30 PM, in the Governor’s Foyer.

6. KM and Advertising #jnog6

 Title:  Upselling KM:  What Would Don Draper Do? 

Description:

What would Don Draper do if he were put in charge of a legal knowledge management program? In other words, what points must be made to firm leadership to start or reinvest in KM initiatives? How can you “sell” the value of KM in the current market? We’ll present insights from knowledge management professionals who have successfully “sold” KM in their organizations. 

This charismatic panel of experienced and successful knowledge management practitioners has repeatedly made the pitch for knowledge management within their legal organizations.  Come hear some of their secrets in what is sure to be an entertaining and educational session.

Speakers include the handsome Tom Baldwin of Cadwalader, Wickersham & Taft LLP, the beautiful Meredith L. Williams-Range of Baker Donelson Bearman Caldwell & Berkowitz, and the dapper Joshua Fireman of Fireman & Company, moderated by talented KM Distinguished Peer Patrick DiDominico. Cigars and Scotch optional.
*Earlier version of this post had an incorrect title.

 

 

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.

Follow

Get every new post delivered to your Inbox.

Join 176 other followers