I saw a post on Knowledge Jolt With Jack, discussing a book called Making Work Visible: Exposing Time Theft to Optimize Work & Flow, by Dominica DeGrandis.  DeGrandis identifies five time-theft “thieves:”

  • Too much work-in-process.
  • Unknown dependencies.
  • Unplanned work
  • Conflicting priorities.
  • Neglected work

Continue Reading Time Bandits

One of the best things that sometimes happens at professional conferences is when a speaker says something that makes you sit up and pay attention. That happened to me at the British Irish Association of Law Libraries (BIALL) meeting earlier this month when Nick West, Chief Strategy Officer for Mishcon de Reya LLP, paraphrased chess grand master Garry Kasparov and stated:

An intermediate chess player and a computer beats a Grand Master chess player with a computer.

Now for a little background on why that made me sit up and pay attention.

There’s been so much buzz about how Artificial Intelligence (AI) is going to replace so much of the legal industry, that it is overshadowing something that we’ve known in practice for over twenty-five years. Lawyers and technology have a symbiotic relationship that will continue to deepen as technology advances. Yes, some tasks that are now conducted by lawyers will eventually be completed by technology, but there will also be tasks that at this time can only be conducted by highly trained and experienced lawyers, that will someday soon be accomplished by intermediately experienced lawyers with the assistance of advanced technology. This isn’t some amazing claim; it has happened already, and will continue to happen into the future.

I talked with Nick West after his presentation, and he pointed me to an article from Deloitte authored by Jim Guszcza, Harvey Lewis, and Peter Evans-Greenwood entitled, Cognitive Collaboration: Why Humans and Computers Think Better Together. In the article, the authors discuss that the concept of AI mimicking human thinking is a distraction from where the real value in “the ways in which machine intelligence and human intelligence complement one another.” The concept that they believe needs more focus than AI is Intelligence Augmentation where “the ultimate goal is not building machines that think like humans, but designing machines that help humans think better.”

I won’t rehash what Guszcza et al, write in their article, but I do want to go back the Kasparov statement mentioned earlier, and how I see this applying to the legal field that could mean that an average or intermediate skilled lawyer and technology could be better than an expert lawyer, even if that lawyer had the same technology. First of all, let me state the actual quote from Gary Kasparov from his New York Review of Books article, “The chess master and the computer.”

Weak human + machine + better process was superior to a strong computer alone and, more remarkably, superior to a strong human + machine + inferior process.

Kasparov came to this conclusion after he held a “freestyle chess” match where any combination of computer and human chess players were allowed to compete. The result was that a couple of American amateur players using three computers simultaneously won over grand masters, even when the grand masters used state-of-the-art computers to aid them. Kasparov evaluated the amateurs won because they were “skill[ed] at manipulating and ‘coaching’ their computers to look very deeply into positions effectively counteracted the superior chess understanding of their grandmaster opponents and the greater computational power of other participants.” In other words, they understood how to leverage the computers’ to perform freestyle chess, and that skill proved greater than the skills needed to be a chess master playing freestyle chess.

Will the same concept apply to the legal field? I would say that the probability is very strong. The skills needed for the future lawyer, aren’t necessarily the skills needed for an expert big law partner today. Those lawyers* who understand the legal concepts and applications and apply the proper technology using a superior process can be better, faster, and cheaper than the highly skilled lawyers who cannot or will not leverage that technology, or who cannot understand how to effectively leverage the application of that technology.

I would say that this is not a future concept, but rather one that arrived in the legal profession years ago. As William Gibson famously said, “The future is already here – it’s just not evenly distributed.” There are already a number of “average” lawyers using technology and effective processes who are already out there. As the technology improves and helps additional average lawyers think better, it is going to be harder for expert lawyers to prove their value. The skills needed to win in Freestyle Legal Practice will be held by those that understand the roles played by the lawyer, the technology, and the process.

_______________________
*The fact that I got this idea from attending a law library conference may mean that it’s not just the average lawyer who may be the only ones able to leverage these skills.

[Ed. Note: Please welcome guest blogger, Keith Lipman, President at Prosperoware. Keith is a long-time friend of the Geeks, and well-known leader in the information management field of the legal industry. This post originally appeared on June 24th on LinkedIn. – GL]

What’s in a word? Lack of precision often. The terminology in the legal industry around phases, task codes, and tasks can drive you crazy. The word “task” is particularly imprecisely used. Generally in our industry, the term task does not actually apply to a task in the traditional sense of the word but actually applies to work performed during a phase or a sub-phase of a matter. Confused? So are many of us. Let’s de-bunk the most common misuse of this terminology and get everyone on the same page.

The root problem dates back to the design of the ABA task codes and the Uniform Tasks Based Management System (UTMBS). The purpose of these coding systems was to enable electronic invoice processes. The primary use of the code set are in the areas of litigation and the cost codes around managing expenses and disbursement.

Take the example of discovery in the ABA Litigation Code Set. The phase code for “Discovery” is L300, which represents the discovery phase and the task codes include “Written Discovery,” “Document Production,” “Depositions,” “Expert Discovery,” “Discovery Motions,” and “Other Discovery.” However, these labels all represent sub-phases not tasks. The “real tasks” lie underneath.

Things got worse when many clients and law firms decided they didn’t like the ABA labels and changed them to fit their needs. For example, the official label for L200 is “Pre-trial Pleadings and Motions” but some clients want it to read “Pleading and Motions.” As a result, within a single firm the same code can have slightly different meanings for different clients or for internal firm purposes.

The problem with all these codes is that a significant number of lawyers don’t use them accurately. Anecdotally, I’ve been told on many occasions that 60 to 80% of time entries have inaccurate codes. Much of the problem stems from the fact that there are over 29 codes in the litigation code set. A choice of 29 codes is a lot, especially when you need to enter codes all the time. If a lawyer bills 8 hours per day, they’ll need to make somewhere between 8 and 20 time entries per day or 2,000 to 5,000 time entries per year.

My general experience with look-up lists on frequents activities is that they should ideally number less than 5 entries and no more than 10. After 10, the accuracy of picking the correct choice diminishes pretty quickly. I based this conclusion on best practices that emerged from my experience designing and managing document management systems, which have exactly the same problem.

While the UTMBS tasks codes are good for billing, they actually don’t help you effectively price or estimate a matter. When you go back and look at a prior matter, there is little information about critical details. In most U.S. litigations, the critical details that make the difference in cost is number of motions, number of documents, and number of depositions. This is next to impossible to find out because traditionally no one tracks the “real tasks” underneath the sub-phases.

To understand this better, let’s turn back to the task label that are really sub-phases, such as “Document Production,” a sub-phase during which carry out many specific tasks. Examples of these tasks include collecting documents, processing documents, planning for document review, reviewing documents, quality assurance about the reviews, and producing the documents. Some sub-phases are simpler but still problematic. For example, in the area of “Depositions,” you have two fundamental tasks, take a deposition and defend a deposition. These are very different things, but under e-billing they all get grouped under “Depositions.”

If you notice, all tasks start with a verb. Under each of these tasks are a multitude of activities performed by a multitude of people. Let’s take the example of taking a deposition:

  • Schedule the deposition (secretary/paralegal)
  • Pull the hot documents (associate)
  • Review the documents (partner)
  • Build an outline (partner)
  • Take the deposition (partner)
  • Update the factual timeline (associate)

As you can see, we have three people involved in this one task, which means that process improvement may simply need improving the speed with which one of these activities gets done.

Measuring and getting to this level of detail is the nirvana. However, to get there, your current technology needs to evolve, and the partners in your firm will need to agree on the list of tasks and activities in each phase and sub phase. I believe I have the answer to this and will present it in the Fall.

What you should do in the interim is setting up a limited set of tasks codes in any matter and use a time entry system that can limit the list of available codes to those that are available for a particular matter. This is going to create more work in setting up matters, but it’s the price you’ll have to pay for better data. The other critical interim step is to create a scope or assumptions that go with any budget and write a post action report on any matter to understand the difference between your assumptions and reality.

As I said, look for a follow-up on this in the Fall.

I have said in the past that my job as a blogger is to get the conversation started.  By that measure, my last post was extremely successful.  Three bloggers, that I know of, felt compelled to write follow up posts to The Myth of Disruptive Technology,  and at least one commenter went so far as to “not suggest this post is without value”.

I think I agree with all of them, but I’m not sure I said anything they think I said.  🙂

Sam and I had a good laugh on Twitter about starting a conference to rival ReInvent Law called the Slow-Evolving Practice of Law Conference. Although, to be honest, I’m not against the idea of reinventing or disrupting law, in fact, it’s probably going to be the most outrageous and outlandish ideas coming out of ReInvent Law that will eventually be watered down and whittled away until they become the small incremental change that adds up over time. Big ideas most often lead to incremental change, while incremental ideas get swept away.

And I agree with Nina, Disruptive Technology and Innovation absolutely exist! The myth that I refer to in the title is “that you can buy, build, or imagine [a technology] that you can simply drop into your existing workflow and reasonably expect it to disrupt anything other than your existing workflow.” And I stand by that. I draw a distinction between technology that by its very existence will disrupt an industry (which does not exist) and a company that uses such technology to great effect in order to disrupt an industry (which happens all the time). Netflix, and other video streaming services, are the latter and, as Nina rightly states, they are continuing to disrupt other industries like cable television.  But again, it’s the business model that is disruptive, not the delivery mechanism. The delivery mechanism may make the business model possible, but on its own it’s of little additional value. It’s not the technology that’s disruptive, it’s how you use it.

And Steven’s post is fantastic, I went back and reread it three times. There’s some great stuff in there and some fascinating analysis, but my thesis was not that Blockbuster “failed by not responding earlier to Netflix”, but that Blockbuster “had no way to adopt streaming video without completely undermining the rest of their business.” They weren’t willing to undermine the good thing they had going, which was a rational, if ultimately fatal, decision.

When I first published the post on the LexisNexis Future of Law Blog, my good friend Ron Friedmann gave me a hard time on Twitter.

I joked that I couldn’t give everything away for free, but I actually alluded to the answer in the next sentence. “Now is the time to build a legal service delivery engine that can accommodate project management, automation, artificial intelligence, and extreme transparency to clients.” While that is definitely not a comprehensive list of the next great innovations in law, I think it’s fair to say that those four innovations are already happening. And those four innovations all point to one big historical change for the practice of law, process efficiency now matters. 

Maybe I should have said that efficiency is to law what streaming video is to the video rental industry?  I didn’t want say anything that concrete in the last post, because let’s face it, it’s ridiculous. Although, I can’t help but think there’s a parallel between Blockbuster not being able to stream video and remain profitable and some firms not being able to increase efficiency and remain profitable.  After all, profit has been based on inefficiency in law firms for a long time. Technology may be able to help, and some of those technologies could be called potentially disruptive, but technology alone will never make you disruptive, or efficient, or profitable.  I think my original point was something along those lines.  Although to be honest, this has been interpreted in so many different ways, I’m not entirely sure what I meant originally.

Still, I can take some solace in the fact that at the very least my original post made Byron think. And that’s good enough for me.

This post originally appeared on the LexisNexis Future of Law Blog under the title, Lessons from Blockbuster: re-engineer, don’t disappear

http://dealbook.nytimes.com/2011/02/24/blockbusters-fall-and-netflixs-rise-in-pictures/?_php=true&_type=blogs&_php=true&_type=blogs&_r=1

In a recent session at LegalTech NY, I spoke about what I consider to be the great myth of disruptive technology; that we need to be on the hunt for the next big thing to set our firms apart and leave our competition in the dust. This is a fool’s errand. As I said in my talk, there is no technology that you can buy, build, or even imagine that you can simply drop into your existing workflow and reasonably expect it to disrupt anything other than your existing workflow.

To illustrate my point I presented the old war-horse of disruptive technology fables, Netflix vs. Blockbuster. At the height of their success Blockbuster Video had 9,000 stores, 60,000 employees, and nearly 6 Billion US Dollars in revenue. Six years later they filed for bankruptcy, and in January of this year they finally closed the last of their US stores. Meanwhile, Netflix video streaming today accounts for more than a third of all US internet traffic during prime time hours, and Netflix is the darling of Wall Street. The moral of this story, as it is generally told, is that streaming video is a disruptive technology that brought down Blockbuster, catapulted Netflix to success, and up-ended the entire video rental industry.

But like most fables, that’s just a little too simplistic. In fact, far from being a primary disruptive force, streaming video was just the last piece of a large disruptive puzzle that Netflix had been putting together for years. The primary disruption actually took place long before streaming video across the internet was even a viable distribution method.

When Netflix burst on the scene in the late 90s they had a DVD rental by mail business. You went to their website and signed up for a monthly subscription that entitled you to a number of simultaneous movie rentals. Then you looked through their catalog of available movies, selected those you’d like to see and the order you’d like to see them in, and they mailed you the first few DVDs on your list. When you were done watching one, you slid it back into the envelope, mailed it back to Netflix, and they’d send the next movie on your list. The best part was that you could keep movies for as long as you wanted and there were never any late fees.

This was a huge departure from Blockbuster’s model of 9,000 stores and 60,000 employees, charging a fee at the point of rental, and collecting massive late fees when you forgot to return the movie by the time you promised you would. In fact, a substantial portion of that $6 billion in revenue was directly attributable to those late fees.

It was common knowledge in the late 90s that streaming video would one day be the norm, even if it wasn’t entirely clear exactly how it would work or what it would look like. The technology was out there; it was just waiting for bandwidth and computing power to catch up. While they were waiting, Netflix built a video rental engine that could accommodate a faster distribution method, or indeed, any distribution method that came along. And Blockbuster just kept raking in the dough with the old model that had served them so well for decades. That model continued to work beautifully, right up until it didn’t and Blockbuster went out of business.

The moral of the story is not to go out and find the next big thing before anyone else does, but to re-engineer your business now to accommodate what you already know is coming. We know what the next great innovations in legal service delivery are, even if we don’t know exactly how they are going to work or what they are going to look like. Now is the time to build a legal service delivery engine that can accommodate project management, automation, artificial intelligence, and extreme transparency to clients.

The sad truth of the Blockbuster tale is that despite their market dominance, and their vast resources, they had no way to adopt streaming video without completely undermining the rest of their business. Sometimes I wonder how many law firms are in the same position now.

Legal Project Management (LPM) can now officially be crowned the buzz-phrase of 2012. Although not many firms have fully integrated LPM in to their practices, the need for embracing it is a foregone conclusion. Being faced with this challenge has caused me to put many brain cells on the how and why of LPM and what will drive productivity growth in law firms. Ron’s post on productivity helped bring my thinking in to the clarity of this blog post. From what I am seeing, the market is setting lower prices and now firms are trying to reduce the cost of their services, which translates in to productivity growth.

To Ron’s points on growth in productivity, law firms need to become ‘better, faster, cheaper’ (BFC). Obviously LPM plays a role in this. However, I believe LPM is necessary but not sufficient for BFC. Because in most respects (and I’m sure other bloggers may chime in here) LPM is about doing something the same way only with more discipline. It’s about defining how we do things and then institutionalizing that effort in a standardize way.

I have touched on this point before, however the BFC angle refined my thinking and I drove me to the following BFC definitions:

Better: Doing it (a task, matter, etc.) with the same or more resources but driving an improved outcome (a.k.a. higher value).
Faster: Doing it with the same resources and with the same outcome, but in a shorter period of time.
Cheaper: Doing it with fewer or cheaper resources and driving the same level of outcome.

Translated in to ‘legal’ these become:

Better: Doing it with the same or more hours, but getting a better result.
Faster: Doing it with the same hours, but in a shorter time-frame (probably with more people).
Cheaper: Doing it with fewer hours or by using people with lower rates or with technology.

There is an old engineering adage that says “Faster, better, cheaper — pick two.” This idea basically argues any system can optimize at most two factors, to the detriment of the third. Using LPM, at best you can restructure the project plan to improve one or maybe two of the factors, but only by sacrificing a reduction in the third one. Clients seem to be pushing on ‘cheaper’ with minimal attention to the other 2 factors. This begs the question of where should the focus be?

Real productivity growth comes when you change the system, which leads us to process improvement. This is where most businesses gain a competitive edge. They employ long-term process improvement techniques, along the lines of Six Sigma.

Which brings me back to my point: LPM is necessary but not sufficient to drive improvements in law firm productivity. Project management brings discipline to a process, but is not about improving a process over time. I believe growth in productivity is what clients really want, whether they see this explicitly or not. Discussions about ‘efficiency’ are too often vague with no real discussion about what that means (e.g. no first year associates on the bill). Instead the presumption is that ‘cheaper’ equals efficient.

So I’ll start my campaign now for BFC to become the heir-apparent buzz phrase for 2013. Instead of being a technique like LPM, it’s actually the desired goal.

In the series on law firm profitability, the clients weren’t directly addressed. As law firms struggle to adapt to a profit margin business model, what will the impact be on how much clients pay and on the quality of services they receive?

We explored two basic methods for lowering the cost of delivery of legal services, which can obviously impact the fees clients pay and the quality of their service. We’ll tackle these methods much like we did from the law firm perspective.
Fewer Hours
First up is finding ways to use fewer hours to provide the same service. This included the use of LPM and process improvement and innovation. The value of LPM to clients, in my opinion, is more about consistency than savings. Having well-defined plans up-front, means more consistent execution and quality of service. Or in other words – standardization equals quality. Fewer things fall through the cracks, when you have a plan to avoid them. An added benefit of LPM is the potential for savings. Just having a thought-out plan can eliminate some unnecessary tasks that would have been done otherwise.
Process improvement has significant potential for benefiting clients – just like it does for law firms. By attacking the plans and processes generated by LPM with an eye towards reducing hours and costs, firms will be indirectly attacking the cost to clients. Every hour reduced is an opening to reduce the costs to clients. And just as importantly, process improvement can maintain and improve quality of service (provided it is done well).
Cheaper Hours
Lowering the cost of service per hour can benefit clients as well. We have 3 options under this heading. First off – new staffing models mean lower cost per hour on comp. Essentially this means giving work to staff attorneys instead of more expensive associates. Staff attorneys will have lower costs and may have lower rates. So the savings to clients in an hourly arrangement will depend on the staff lawyer rates relative to associates’. Typically these rates are lower since most firms base rates loosely on comp. So the savings to firms would be passed on in part along to the client.
Next up is leverage. From our last post, we saw the benchmark of 1% of leverage improvement resulting in about a 1% improvement of law firm profit. Using those same metrics, 1% improvement of leverage results in .6% to .7% savings to a client. Caveats:

  1. This is just a benchmark and will differ based on different firms and practices. 
  2. The metrics are derived with an hourly billing model. 

Even though this is benchmark data, I am guessing the same sort of split between law firm gains and client gains would apply to other fee arrangements and other cost reduction efforts. The difference between the law firm gain and the client gain is a reflection of the ‘Rule of Three’ aspect of law firm economics.

Lastly we have the reduction of firm overhead costs as a means of lowering cost per hour. By driving down a firm’s overall overhead numbers, the cost per hour worked goes down. In this scenario I don’t see the client benefiting.

  1. Major reductions in overhead only bring modest reductions in cost per hour. 
  2. By reducing the amount of resources available to the lawyers, their productivity goes down. 

I haven’t seen any metrics that describe this yet, however, the likely outcome is an increase in the number of hours required to perform the same tasks. One obviously example is lawyers having to perform work they used to give to secretaries. So reductions in overhead for firms probably don’t benefit clients and may well drive their costs up.

Bottom-line: almost all of the efforts described that will improve law firm profitably, will also lower costs for clients, or at least create the opportunity from them to be lower. Additionally they have the ability to maintain or improve quality via standardization and tighter management of tasks and processes.
The one exception is the reduction of firm overhead costs. This effort has the least potential for positively impacting clients and actually may hurt them. Currently it is the primary effort firms have been making and continue to make.
My advice to clients:

  1. Understand the impact of each of these efforts and change your behavior to drive their adoption within the firms you use. 
  2. Pay attention to which ones your law firms employ.

A recent post from Eric Elfman got me thinking about the ROI of process improvements versus project management for lawyers. Much attention is being given to legal project management (LPM) these days as the savior for attaining efficiency in a legal practice.
Eric’s point is that process improvement will bring more value to lawyers. In his words:
“Most of these (legal) processes are manual, paper intensive and cumbersome but they are effective on the margins. But why couldn’t they be better with technology?”
In one of those odd coincidences, on the heels of Eric’s post I read the updated intro to Susskind’s paperback version of his End of Lawyers? book. He suggests lawyers employ a “legal process manager” with two duties; “legal process analyst and legal project manager. He lists the ‘process’ role as primary, lining up with Eric’s suggestion.
My old rule kicked in: Hear it once – it’s interesting. Hear it twice – pay attention.
At the risk of upsetting the LPM crowd, I am going to side with Eric and push the envelope a bit. Two points:
1) Lawyers already project manage, just not with discipline and to a budget.
2) Within these ‘projects’ there are numerous repeatable processes that are highly manual.
Admittedly improved project management will bring value. But I see this as doing things the same way only better. Marginal efficiencies will be gained.
Whereas process improvement and automation will drive changes to the way things are done. By definition, process improvement means change. I will concede that at some point the ROI on process automation levels out, but there is a lot more air in this bag than the project management one.
My advice: If you’re in KM or IT, watch for process automation opportunities. One example we have already mentioned here at 3 Geeks is the KIIAC product from Kingsley Martin. This is one example of how dramatic a process change can be.
I look forward to more dialog on this subject.

This week’s Elephant Post question is “When does ‘great’ get in the way of ‘good’?”

The idea behind the ‘Great v. Good’ question is whether the pursuit of perfection causes a paralysis in actually getting something accomplished, or as Scott Preston eloquently puts it – “Don’t over think it, stupid!!”

Whenever I think of this question, it reminds me of a quote from the 1993 movie, Six Degrees of Separation, where Donald Southerland’s character, Flan Kittredge, dreamt of a painter losing his ability to paint:

I remembered asking my kids’ second-grade teacher: ‘Why are all your students geniuses?
Look at the first grade – blotches of green and black. The third grade – camouflage.
But your grade, the second grade, Matisses, every one. You’ve made my child a Matisse.
Let me study with you. Let me into the second grade. What is your secret?’

[The teacher response was] ‘I don’t have any secret. I just know when to take their drawings away from them.’

Sometimes we just need to step back and understand that sometimes we lose our ability to produce great work by spending too much time and effort trying to make it, in our own minds, at least, perfect.

NOTE: Next week’s Elephant Post Question is at the bottom of this post. Take a look at it to see if you want to be a contributor to the next Elephant Post!

This week we have perspectives from Alternative Fee Arrangements, Information Technology, Knowledge Management, Information Technology, and from a Managing Attorney of an Intellectual Property firm. So, enjoy… and let us know what you think.

The Law Library Perspective
Perfection = Fossilization
As a result of a combination of our inherent nature and our academic training, we as librarians are used to being critical thinkers.  We get a problem or a question and we analyze it and research it to get to the end product or result.  When applied to research questions, these skills are essential, as they allow us to be as thorough as possible and give our users work product that they can trust.  We complete those “scorch the earth” searches with relative ease and they know that if there was something out there to be found, we have found it. However, these skills as applied to projects or new initiatives are not so helpful and, in fact, can be downright problematic.  Librarians, generally, have developed a culture of studying things to death and moving way too slow.  In order to be perceived as true leaders within our organizations, we need to realize that, sometimes, all we need to be is good, not perfect.
I attended an AALL webinar a few months back where Stephen Abram was the speaker and his talk was called Interpreting the Tea Leaves: Thinking About the Future.  He covered a lot of ground, but one of the things that resonated with me was this very topic.  He said that critical thinking professions (such as librarianship), are somewhat fatalistic and that they can devolve over time to just black and white thinking.
My favorite quote from him was that “…if we’re waiting for perfection, we’re waiting for fossilization.”  We need to move past perfection (God, I never though I would hear myself say that…) and think more about what we can do now to deliver information/content/value to our users.  It might not be perfect, but time is passing regardless and we don’t want to let it pass us by as we try to get things just right.
I will be the first to admit that it is against my nature (and training) to not strive for perfection, but I have to keep reminding myself that in doing this, I might just be missing out on some competitive advantage or strategic partnership that could end up being way more important and useful in the long run.  I think we all need to keep this in mind and, to use a very overused Nike quote, “Just Do It!”

The Alternative Fee Arrangement (AFA) Perspective

Perfection?  What’s that?
Toby Brown

From my AFA porthole – this is an easy topic.  There is no such thing as perfection in setting a price.  In other markets there exists the term “optimal” pricing, but that will be a while coming in the legal market.

This subject came up recently in a meeting with partners.  I saw this coming and was ready for it – even had fun with it.  Lawyers, being the ultimate risk avoiders, crave and cling to perfection.  This holds true especially with setting fees since the impact of setting a fee poorly falls directly on them.  They always want to base the fee/price on a very detailed budget accounting for all contingencies.  I understand their desire for this.  It’s just that this approach is unrealistic.  You can’t account for all contingencies in a legal matter and build them into the price.  Instead you define and isolate as best you can the potential factors that will impact the fee and lay them out as triggers for renegotiation.

Ultimately all prices are guesses.  Even setting the price for a candy bar is a guess, since it’s impossible to know everything that influences a buyer’s decision.  For legal services, you want to make the most educated guess you can when it comes to fees.  But spending copious and possibly unlimited amounts of time trying to build a bullet-proof (a.k.a. perfect) fee is a waste of time.

In the meeting with the partners –  I stated out-loud that all prices are ultimately guesses.  After the cumulative blood pressure in the room peaked, I let them know this was OK and we will get them to the point of making the best educated guess – without going over (so to speak).

I can admit it.  I enjoyed that.

The Knowledge Manager’s Perspective
We Are Not Contortionists, Lion Tamers, or High Wire Acts
I just returned from Le Grand Cirque ILTA, a circus-style evening at ILTA’s annual conference featuring a contortionist, a hand balancer, and an aerial ribbon performer. For these professionals, perfect balance is everything; anything shy of perfection causes them to fall and their proper execution to fail. The same goes for a variety of circus performers, lion tamers, high wire acts, and the like – it’s all or nothing, success or failure.
As an attorney-turned-knowledge-manager, I used to feel like one of these circus performers. My two options were perfection and failure. Nothing in between.
But I’ve come to realize that in the world of knowledge management, the ‘in between’ is the sweet spot. Not only because aiming for perfection takes an inordinately long time, but because in this world perfection is like a winged pig; it doesn’t exist and never will. The high wire performer can achieve perfect balance and land on the wire without the slightest bobble. Knowledge managers, on the other hand, will always have information that is out of reach and knowledge that is impossible to materialize in a productive way.
While this realization may seem frustrating to some, I hope for others it is a huge relief. It means that we no longer need to strive for perfection, and in fact doing so misses the point. Because we are not here to produce perfection; we are here to improve the business and practice of law which (here’s the kicker:) can happen incrementally. Releasing an imperfect system still makes a process better than it was before, even if it can be made even better down the road.
What better news than to find out that imperfect decisions can in fact be perfect. The perfectionists in us can finally get some sleep after all.

The Patent Attorney and Inventor Perspective

Wait For Great and You May Be Late”
Bruce Burdick, Owner & Managing Attorney
The Burdick Law Firm, Intellectual Patent Attorney from the St. Louis area

Inventors and their patent attorneys face the question on every patent application on every invention.  Do we submit the patent application now, when the invention is still evolving and not yet perfected, or do we wait until the current “good” invention becomes “great.”  Most experienced patent attorneys know the answer is generally that good is good enough.  Great can come later.  Great may be lost to the inventor and patent attorney by waiting for good to become great.  You see, in the rest of the world (and soon to be in US as well), the first to invent under the law is the first to disclose the invention in a patent application filed with the appropriate patent office, usually the patent office of the inventor’s country of residence.  Waiting for good to become great can result in a third party filing on their good version of your good invention and preempting you.  That will result in you losing both good and great to someone who either only had good or who thought good was good enough.

There are over 7,000,000 US Patents, more than 6,000,000 issued since the famous 1843 statement by the then Commissioner of the US Patent Office that “The day is fast approaching when everything that can be invented, will have been invented” concurrent with his proposing that the Patent Office soon be shut down as new inventions would not be possible. So there will always be improvements and today’s good will be tomorrow’s bad and today’s great will be tomorrow’s good, and tomorrow’s great is as yet unknown.  So, a big part of the patent attorney’s job is to convince the inventor to file on today’s good today so the inventor won’t lose good or great.  Fortunately, the patent law and patent practice recognize this dilemma and provide for what are called “continuation”, “continuation-in-part” and “divisional” patent applications so that if the inventor files on good and then improves it to great and files on great then both may be covered.  Also, if great is not obvious to one or ordinary skill in the relevant art who knows of good, then an original patent application may be filed on “great”.

In truth of fact, nearly every invention is an improvement on someone else’s “good” or “great” invention, often brought about by new technology, new thinking, or new problems.  So, we patent attorneys know by experience that good is often good enough.  Apart from the patent law and inventors, experience tells us that we can get too complex seeking to get great rather than good.  I have had numerous software upgrades to the latest greatest thing only to find out peripherals no longer work.  The appeal of Linux is that it is simple and good and very, very reliable.  Windows keeps getting better and better, but is always fraught with peril due to hackers and internal glitches.  Open Office is “good” not “great” but it is very reliable and versatile and does nearly everything MS Office does, but in a less sophisticated way. My swimming pool cleaner, a robotic Aqua Jet marvel, is merely “good” in comparison to some of the computerized wonders such as used on Olympic swimming pools, but it is so effective and reliable and trouble free and easy to use that to me “good” is better at 30% of the cost of “great.”

We all have similar stories where we look for the complex when the simple will suffice.  I see it with my inventor clients every day.  Good inventors think out of the box and sometimes that involves not taking a more and more complex approach, but stepping outside the norm and thinking “Hey, I know a simpler way to do that.”   Thomas Edison was such an inventor. He was not the first to make an electric light bulb nor did he make a great light bulb, but he made the first one that was good enough (had a filament that lasted long enough) to be commercially viable and set up the company that made electric lighting a reality, and which  today is General Electric Co.  Likewise, Bill Gates didn’t invent the user interface that became Windows.  Xerox did.  Bill Gates did not have the best version, Apple did.  But, Gates had a “good” operating system (DOS and later Windows) and it was good enough to take over the world despite Apple’s OS being superior by all reasonable measurements.  Bottom line, great may be late.  Or, often as regards implementation of good, “You snooze, You lose!”

The Information Technology Perspective

Don’t let the perfection monster eat your lunch
Scott Preston

In a perfect world, the question of great versus good would be a non-issue.  We would have all the goals and objectives of a project perfectly conceived, communicated and shared.  We would have plenty of time to organize our thoughts, play with concepts and formalize our ideas.  We would have an abundance of users willing to work with IT to refine the process and those users would be more than happy to spend their precious time testing, revising and improving the project.  We would have all the necessary resources (both financial and human) and we would have management that understood the value of the project and supported the investment of time and money.

Even in a perfect world where we have most everything stated above, great will still get in the way of good.  It takes a lot of time to conceive, design and implement a good solution.

“The incremental benefit of making a solution great is more often offset by the time it takes to implement it. “

I have seen software development projects go off track because the development team spent so much time trying to develop the perfect plan that the client loses the competitive advantage it had.  The value of speed is offset by the desire for great.

Your best bet is to keep your eye on the ball, deliver a project that meets the needs and deliver it on time.  You will have time in the future to improve the project if there is value in those improvements, but often times good enough is good enough.

What’s Next for the Elephant Post?

The purpose of the Elephant Posts is to ask the same question to professionals from different legal fields, and to encourage guest bloggers to come on 3 Geeks and contribute with a short answer. These “short & sweet” answers give the readers an opportunity to fill in the blanks, or continue the conversation in the comment’s section.

Next week’s Elephant Post Question:


Did the downturn in the economy give you an opportunity to ‘Rightsize’?

The idea behind this post is to ask “Why do we continue to tolerate slackers or unproductive processes?” Come on admit it, you have some products, processes, employees, administrators, associates, partners, etc. that are sacred cows and do not carry their weight. Why do we keep them? In these times, we should be stacking the deck not slacking it. Did the downturn in the economy finally give you the ability to jettison the underachieving processes/workers, or are you still carrying them on your firm’s balance sheet?

We’d love to get your thoughts on this topic. If you want to contribute to the Rightsize During the Downturn post, send me an email. We know that this specific topic may be a little tough to answer, so if you want to take a shot at it, but remain anonymous, we’re okay with that.

When does your firm’s culture trump potential innovations you want to put in front of them?

Idea came from a quote in Craig Roth’s Knowledge Forward post, Technology After Culture? Not in a Million Years.

So basic technology evolved before the basic social construct – the family?  No wonder I still encounter people spending all their time optimizing technology only to find that organizational structure and culture sink their projects. 

The purpose of the Elephant Posts is to ask the same question to professionals from different legal fields, and to encourage guest bloggers to come on 3 Geeks and contribute with a short answer. The idea behind keeping the answers “short & sweet” is to give the reader an opportunity to fill in the blanks, or continue the conversation in the comment’s section (hint, hint!!) This week, we’re taking this question and applying it to Alternative Fees, IT, Library and Records management perspectives. Next week’s Elephant Post question is listed at the bottom of this post.

The Alternative Fee Arrangement Perspective

Culture Rules – But AFAs don’t care
Toby Brown

One of the best pieces of advice I ever heard related to KM was that culture always trumps technology.  The director of KM for ConocoPhillips had a slide showing the Pacman of Culture devouring KM.  His point was that any KM project that ran counter to culture was doomed.  This visual has long echoed my experience at law firms.  Culture is like mud in these places.

That being said – when it comes to alternative fee arrangements (AFAs), culture shows its weakness.  Law firm culture is not compatible with an AFA world, since that world is all about change.  That change is unavoidable and sweeping its way across all practices.  Clients make demands – law firms respond.  AFAs  have a certain power over culture.

What’s interesting is the next layer beyond AFAs.  Here I find an odd, ever shifting battle between culture and change.  For instance, everyone is clamoring for the ideal budget tool (relative to their practice).  Why can’t we just pull that info from the billing system?  Well … we don’t capture the billing information in a way that allows this.

Here attorneys want something desperately, but will only get their question answered if they throw-off the chains of culture and actually make some changes.  That doesn’t go over well.  In the interim there is a lot of gnashing of teeth and pulling of hair.  “There should be a  button we can push that will simply create a budget!”  As they walk down this road, logic takes over and culture is thrust aside.  At some point they see the absurdity of culture’s drag on progress – toss it aside and start making better choices.

I wonder how long this will last.

The Information Technology Perspective

Rip Off That Cultural Band-Aid
Scott Preston

Culture is going to win every time unless the need for change or innovation is clearly communicated and understood.  Human nature craves predictability, consistency and familiarity.  This is true our entire lives.  Some tolerate change more than others but only to a certain degree and the older we get the less we are willing to tolerate change.

Amazingly, it often seems more difficult to make incremental innovative shifts (the phased approach) than to make one big shift, as though there is only so much tolerance for change big or small.  This is the “rip the band-aid off” approach.  Yes it hurts, but the pain quickly dissipates and then we get on with business.  Tolerance for change usually correlates directly to the understanding behind the need for change.  Firms with good communication from management tend to accept innovation more readily because there is an understanding of the direct benefit.  Firms that lack good communication from management continue to look for the magic button to solve the problem.  Why?  Because they don’t want to feel the pain without seeing any direct benefit.

Internet Marketing Perspective

No Innovation, No Sale
By its very nature, if Internet Marketing isn’t innovative, we won’t make the sale. I have to constantly push the envelope to make sure that our message is delivered. This often means I am counter-culture and at cross-purposes. Especially at a law firm.
But I keep pushing, keep trying, keep asking, keep fighting the good fight. Eventually, I get a toe hold. Then, great things can start to happen.

The Library Perspective

Culture vs. Change…  Or Culture and Change?
Mark Gediman

Most people think that the tension between the Firm’s culture and the change needed to remain competitive is one of the few constants in law firm governance.  I disagree. I thought about ending here but didn’t want to face the Wrath of Lambert (Yes, it is a little known fact that he is a distant relation of Kahn Noonian Singh).

In my career as a librarian, I have worked for both corporations and law firms. Law firms have always been for me the greatest challenge.  Only in a law firm do you work with and affect the shareholders on a personal level.  If you start with this in mind, any change can be implemented as long as it is presented in the right way. You need to show the shareholders that it will save them money while still giving them what they need in a usable format and in a close approximation to the way they are used to getting it to have a good shot at success.  My library research portal came about with this in mind.  I was given a mandate (reduce the print collection by moving materials online) and needed to implement this in the culture of a 120 year-old firm.  The only way I felt I could do this and justify the firm’s online investment was to create something that replicated the Attorney’s research process as closely as possible.  I used the Middle- and Senior-Level partners to vet this concept with the idea that an acceptable product to them would be accepted culturally on a large scale.  Addressing their problems and challenges also gave them ownership in the final product.

Culture to me is merely the framework any change or innovation must take place within.  The changes don’t change the culture, they modify how people work within the culture.  Culture does evolve over time but at a glacial pace.  Any changes that are being implemented must keep that in mind or they are doomed to failure.

The Records Management Perspective

When CYA gets in the way…
Janice L. Anderson (Former Records Manager, Corporate Legal Dept.)

While sitting eating a delicious bowl of curry with Greg, Toby and Scott, I listened to the three of them discussing document management and the challenge of records retention implementation.  I realized they were discussing putting into action something that I worked on 5 years ago in the legal department for an oil and gas corporation.   Who knew that we were so ahead of the game?

When you question how the culture of a firm may override the innovation you are trying to implement, I cannot think of a stronger example than the culture of Cover Your Butt.  While trying to roll out a retention policy to a large corporation, we continually ran into folks who did not want to shred a document when they were no longer  legally required to hold on to it.  We always, always were given, “but I may need to cover myself in the future.”

When the climate of a firm puts an employee on the defensive, they do not trust that removing the proof of their work ethic won’t come back to bite them.  Companies store more documents than they need, ignoring the costs of storage, the space on servers, the boxes and boxes of evidence available for discovery.  But their backsides are padded and safe.

Next Week’s Elephant Post Question:


When Does “Great” Get In The Way Of “Good”?
The idea behind this question is whether the pursuit of perfection causes a paralysis in actually getting something accomplished, or as Scott eloquently puts it – “Don’t over think it, stupid!!”

We’ll be out recruiting for guest bloggers this week, so if you want to grab a piece of the elephant and give your perspective on this question, please feel free to email me for more details.