Guest Post by Evan J. Shenkman of Ogletree, Deakins
Can legal KM initiatives actually increase attorney carelessness and risk-taking? Risk compensation, an interesting behavioral phenomenon that has time and again been highlighted in our species, may lead to this odd result. According to a study by Canadian psychologists, school-aged kids tackling an obstacle course engaged in far more reckless behavior once they donned safety gear. A similar correlation has been observed in drivers (seatbelts embolden drivers to speed), skydivers (advances in parachute safety cause more high-risk maneuvers) and ahem, lovers.
The experts call this phenomenon “risk compensation” or “risk homoeostasis.” In a nutshell, the theory suggests that people tend to engage in riskier behavior upon introduction of improved safety systems, jeopardizing (or even negating) the intended benefits of the improvement.
So how is this relevant to legal knowledge management? Exemplar documents are the prized “best practices” of the firm – gold-standard legal templates promoted by KM for ready, efficient use by the firm’s attorneys. They are the helmets and seatbelts of the KM world. When KM promotes exemplars it must anticipate some degree of risk compensation and expect ordinarily risk-averse attorneys to rely upon them blindly, without their ordinary degree of professional judgment and review. A few critical safeguards are therefore in order:
1. Set Up a Periodic Exemplar Review Schedule
What’s worse than an attorney relying on an outdated form? Hundreds of attorneys blindly relying on your outdated, KM-blessed form. Laws change; exemplars become stale. A structured review schedule for any KM exemplar is a must, with a minimum review cycle of every six months.
2. Don’t Bite Off More Than You Can Chew.
Keeping high quality exemplars up to date takes time and KM resources. It’s better to have a manageable few dozen exemplars of the most valuable documents than hundreds or thousands of exemplars that cannot be properly maintained and updated. Remember: attorneys will often accept and use these exemplars without substantive review; if you’re going to have them, they all better be good.
3. Add “Last Reviewed” Dates to Your Exemplar Documents
All exemplars should prominently display a “Last Reviewed” date in the header of the document, in bold, red typeface. Attorneys will quickly ascertain whether updating is necessary before use – and can ignore misleading “last saved date” metadata.
4. Add a Prominent Disclaimer
Finally, despite the best of intentions and much like seatbelts and safety gear, no exemplar is fail-safe. A prominent disclaimer (again, residing in the header) can remind attorneys of their obligation to exercise their professional judgment in connection with the use of any exemplar (and at a minimum, will require the attorneys to pause and take the affirmative action of deleting the disclaimer before using the document). The disclaimers should stress that despite their potential usefulness as a template, the exemplars may be outdated, inapplicable or inappropriate under the circumstances or in any particular jurisdiction.