Above and Beyond KM

A discussion of knowledge management that goes above and beyond technology.

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This publication contains my personal views and not necessarily those of my clients. Since I am a lawyer, I do need to tell you that this publication is not intended as legal advice or as an advertisement for legal services.
  • Passport 1Forty years ago today, my parents packed up their children and every material possession they had to move to the other side of the world.  In retrospect, I can only marvel at the bravery involved in taking that step.  With that move they had to start all over again –  in a culture and climate that were very foreign to them, far from the comforts of family and home.

    Since that time, I’ve moved to and lived in two other countries. The first one was to pursue an educational opportunity, the second one was to pursue an professional opportunity.  Unlike my parents, each of my moves involved countries that on paper shared a great deal.  Nonetheless, after each move I discovered that the local culture was quite different from the one I left.  As a result, I had to learn new ways of being and acting.  Most surprisingly, even though each of these countries was English-speaking, I soon found that I had to learn a distinctly new vocabulary and way of speaking in order to communicate.

    When I made the move from client-facing lawyer to lawyer-facing knowledge manager, I found myself in yet another immigrant experience.  Suddenly I was faced with the need to analyze and understand the organizational culture around me in a new way so that I could maximize my effectiveness in my new role.  This involved an anthropological exercise that I return to often in  order to be aware of the changes in the culture around me.  Interestingly, even though I’ve been with the same organization for twenty years, I’ve found it very useful to keep the mindset of an immigrant in order to perceive cultural shifts as they occur.

    Knowledge managers often find themselves in a particular organizational world, but not of that world.  While this can mean initial frustration as you struggle to learn the folkways of the organization’s culture, that distance can be hugely helpful when you try to understand objectively how the people around you work and succeed.  Learning to observe the signs, find and pull the cultural triggers, and, ultimately, shift the organization into a more knowledge-sharing culture are critical to a knowledge manager’s success.

    Without a doubt, immigration is a challenging experience.  For knowledge managers, I’d argue that it is a necessary experience that helps develop a sense of inquiry and understanding.  So don’t get too comfortable — there’s too much to learn.

    [Photo Credit: Craig James]

    2 Comments
  • Magnified (8/365)If you’re in law firm management, you’ve probably been feeling a bit like Ebeneezer Scrooge staring at an unhappy future as several bloggers** recently painted a relentlessly challenging picture of the law firm of the future.  (In Charles Dickens’ A Chrismas Carol, Scrooge’s deceased partner, Jacob Marley, warns him in a dream that he is headed for a dismal fate if he does not pay attention to the message of the Ghost of Christmas Past, the Ghost of Christmas Present and the Ghost of Christmas Yet to Come.) Over the course of the last week, Toby Brown, Ron Friedmann, Jordan Furlong, Steven Levy, Bruce MacEwen, John Wallbillich and I have written about the growing pressures on law firms to refine their business models and business practices so that they can flourish in the new law firm economy.  Toby Brown describes that new law firm economy as one in which there are three tiers of firms:

    • Tier 1 — high stakes matters; 15-20% of the market and declining
    • Tier 2 — mid-level stakes; 50-60% of the market and growing
    • Tier 3 — nuisance matters; 20-25% of the market and relatively stable

    While every lawyer likes to think of their firm as a top-tier firm, chances are that very few firms will actually be able to survive and thrive in Tier 1.  John Wallbillich suggests that about 40 global firms will inhabit that top tier.  The Lawyer.com points to their transatlantic elite “Sweet Sixteen.” Even if we don’t know the exact number of firms in Tier 1, we know that it will be a number that is substantially smaller than the AmLaw 200.  And, we know that getting into and staying in that group will take considerable effort.  These firms will need to attract and keep legal stars.  These firms will need to support those star lawyers with law firm machinery that can deliver excellent services at a defensible price.  In this regard, any firm that aspires to remain in Tier 1 needs honesty and discipline.  Where does the honesty come into play? Each top tier firm has to be brutally honest with itself — understanding its strengths and weaknesses, acknowledging that while it may charge top dollar for its work, not all of its work is necessarily complicated, innovative or high risk.  Some of it is routine, repeatable and could benefit from a more systematic approach.

    One way to think about the array of work within a firm is to plot it against John Wallbillich’s Legal Fee Pyramid (PDF).  In a high-stakes matter, the judgment and experience of the senior legal expert on the team may be worth more than $599 per hour (in some firms more than $1000 per hour). But what about the work of less experienced personnel on the due diligence effort? Or the eDiscovery work? Or drafting relatively routine documents? Or planning a closing? For each task or phase of a matter that falls low on the pyramid, a firm must carefully examine the workflow to ensure that it is as streamlined and economical as possible. Done well, this means imposing law factory discipline on those parts of the practice that are most susceptible to client fee pressures. There is no substitute for a clear-eyed honest effort in this undertaking.

    Why? Isn’t the whole point of being a Tier 1 firm that you’re free of fee pressure? Not exactly.  Even Tier 1 clients want to prevent runaway legal spending.  And, as I heard at a recent conference, there is growing pressure on Tier 1 firms to curtail spending on litigation matters.  Surely non-litigation matters are not far behind.  In fairness, while the conference participants might grouse about the highest billing rates, they did not dispute the value provided by the most experienced lawyers in Tier 1 firms. Rather, they were focused on ensuring that the work done by the less experienced or less expensive people in the Tier 1 firm was necessary, focused and efficient.

    At the end of the day, even Tier 1 firms are not immune from client concerns about legal spending.  Those client concerns may get expressed in a variety of ways such as a request for a discount, an unwillingness to pay for certain “overhead” expenses or a decision to move eDiscovery in-house or off-shore.  Smart Tier 1 firms intent on not only surviving but thriving will undertake a close self-examination to ensure they understand how they work before those client concerns about spending are expressed.  Otherwise, those firms will be looking at involuntary discounts, lower realization rates, and growing competition for the spots on a client’s shrinking legal panel — all of which add up to diminished partner profits.

    All of this calls for more disciplined firm management.  Gone are the days when a firm’s one sentence billing statement (i.e., “For services rendered….”) cloaked a variety of work and expenses.  Just as clients are demanding more transparency on the bills, firms should be insisting on more internal transparency.  Until a firm truly knows itself, it will never be able to explain and fully defend its value proposition to its clients.

    __________________________________

    ** Here are links to various posts on the Law Factory vs Bet the Farm (or Bet the Company) Firm Debate to date:

    [Photo Credit: Jake Bouma]

    3 Comments
  • Times Square Stock TickerEvery good conversation invites participation, and I’ve found it impossible to resist jumping into the very interesting conversation Toby Brown and Ron Friedmann have begun online regarding possible business models for large law firms.  The genesis of the conversation was a session at the 2010 International Legal Technology Association Conference in which Ron Friedmann, Gerard Neiditsch, Jeffrey Rovner and I proposed two extreme law firm business models:  “bet the farm” practices and “law factory” practices.  (You can find our slides, as well as links to some discussion summaries, in  Ron’s blog post regarding the ILTA session.)  While we limited our discussion to the purest form, where a firm focuses on one business model or the other, real life isn’t quite so tidy.  In fact, law firms may reluctantly discover that they need to support examples of both business models simultaneously.  But what’s the best way to handle this? Toby draws inspiration from large banks, while Ron analyzes the example of large hotel chains.  In both cases, they show how it is possible for an organization to offer a variety of services at different price points without damaging that organization’s brand.  In so doing, Ron and Toby challenge a large law firm concern that moving away from marquee (bet the farm, high-touch) legal practices will cause such confusion in the public’s mind that the firm’s brand will suffer.

    While both the banking and hotel examples have much to commend them, I have a smaller, more personal example in mind intended to help law firms understand that they may no longer have much choice regarding these business models.  What if law firm leaders were to consider their firm’s practices in the same way any prudent person considers the investments in their retirement savings account? For example, one golden rule of investing is to diversify your investments to achieve the correct balance of growth and protection.  Consequently, it won’t be appropriate for most investors to invest solely in high-risk high-return targets.  Typically, investors are advised to put some portion of their money in fixed income investments or money market accounts.  While these investments may provide lower rates of return, they also tend to preserve the monies invested.

    Now what happens if law firms were to treat each practice area as a type of investment.  For example, a mergers & acquisitions practice might be likened to a higher risk investment that provides great returns at the top of the business cycle, but may not perform so well in an economic downturn.  By contrast, a bankruptcy practice theoretically should provide better returns during a downturn, as should any practice (such as project and infrastructure finance) that depends on governmental stimulus funding.  In each legal market, the mix of high-risk and high-security will differ depending on local conditions.  Of course, things become more interesting (and undoubtedly more complicated) when a firm spans many legal markets.  Achieving the correct balance between risk and security across geographic boundaries requires even more insightful investing.

    Another way of thinking about various investment opportunities for law firms is to compare “bet the farm” (or “bet the company”) practices with “law factory” practices.  Ron Friedmann has written extensively about these contrasting business models for law practices.  In brief, a bet the farm matter tends to be relatively rare and high risk, where the client is more willing to pay what it takes to get the right result.  In these practices, there may be less fee pressure and fewer opportunities for routinized (and cost-controlled) work.  By contrast, the law factory practice is high volume, low margin.  These practices operate under tremendous fee pressure and, therefore, put a premium on producing work in a reliable, repeatable fashion at a competitive price.  To achieve this goal, they tend to rely heavily on efficient business process, standard form documents, automated document assembly, expertise systems, and lower cost professionals.

    Taking the investment portfolio approach suggests that a law firm should seriously consider “hedging” each of its bet the farm practices by investing in some practices that thrive in economic downturns as well as some law factory practices that produce steady results despite fluctuations in the state of the economy.  Given the pricing pressures on these practices (e.g., court or governmental oversight of legal fees or a well-established market that prices legal services efficiently), these hedging practices need special attention from law firm leadership. This means focusing on making these hedging practices super-efficient and properly packaged and priced for the relevant market.  It may mean making additional investment in practice support lawyers, automated processes and the kinds of rigorous business performance standards that we are told apply to the best manufacturing facilities.

    While the wisdom of a well-balanced, diversified investment portfolio is self-evident, this approach is not entirely without its challenges.  For example, since the bet the farm practices operate under some different constraints from that of law factory practices, law firm management will have to be careful to calibrate firm support services and infrastructure investments so that they are appropriate for each type of practice.  Further, how do you handle the potential for income disparity and differing levels of respect for the lawyers in each practice?  To be fair these challenges are not entirely new.  Even a firm that focuses entirely on bet the farm work may accord different levels of  compensation and respect to the rainmakers versus the service partners.

    While large law firms may be comfortable with the notion of building practices areas that thrive at different points in the business cycle, they may have a tougher time accepting the idea of off-setting their high risk bet the farm practices with some lower risk law factory practices.  Then, they may have an initial struggle as they realize that their traditional bet the farm approach to work will not yield the intended economic results when applied to law factory work.  The resulting self-examination and re-engineering will not be easy, but is critical for success.  Firms that accomplish this may well find that the efficiencies forced on them by the law factory business model have a salutary effect on the parts of their bet the farm practice that are relatively repeatable.

    At the end of the day, the key is to focus on a well-balanced array of practices that are designed for optimal results under the business model that governs them.  Unfortunately, although we’ve all heard the advice to diversify and re-balance our portfolios, there will always be those investors who forego diversification and decide to stake their lives on a “sure thing.” Let’s hope your law firm isn’t that type of investor.

    [Photo Credit: th.omas]

    6 Comments
  • Legal researchA Notice to Lexis and Westlaw:  You would be well-advised to read this post since it proposes a better model for your products.  (As for the royalty checks you’ll owe me, let’s talk…)

    For a few brief months early in my legal career, I was a litigation associate.  As such, the main focus of my days was legal research. Being a diligent sort of person, I’d spend hours tracking down one case after another and yet, despite my conscientious approach, I could never entirely dispel the nagging feeling that somewhere out there was the one case that could blow my research out of the water.  Surely, I’m not the only lawyer who has confronted this.

    The cause for this anxiety was the knowledge that my search results were only as good as my search technique.  And I was honest enough with myself to know that I wasn’t nearly as expert at searching as, for example, a research librarian.  However, in those days, it really wasn’t the done thing to have a research librarian do your research for you. So I soldiered on and tried to refine my search methodology.

    With the benefit of hindsight, it seems obvious that the current approach to legal research is fundamentally flawed.  Lexis and and Westlaw have created these enormous databases of case law that cannot be completely mastered unless you have world class research skills. In fact, what they’ve created is a frustrating game of “find the needle in the haystack.”  The problem is that the people who need the cases aren’t always the best equipped at finding the cases, and the people who are expert at finding cases aren’t the best equipped to analyze and use them. Further, most law firms don’t promote lawyers on the strength of their research skills. Rather, they promote lawyers on the strength of their analytical, advising, negotiating, writing and business-winning abilities.

    It would be better if Lexis and Westlaw aligned themselves with their customers’ need to improve analytical capabilities.  Here’s the new model I propose:  instead of forcing lawyers to come up with appropriate search queries, Lexis and Westlaw should ask lawyers questions to elicit information about the case at hand.  In other words, the role of the lawyer searching for precedent would be to analyze their own case and strategy and provide that information to Lexis and Westlaw: what are the pertinent facts of the case, what jurisdiction, what procedural approaches is the lawyer considering.  Then, Lexis and Westlaw would deliver to you links to groups of cases that match your facts within your jurisdiction.  You could then review them to see how closely aligned they are to your situation.  Ideally, this approach would reveal the array of ways in which lawyers before you had handled this fact pattern in your jurisdiction and would highlight opportunities for following precedent or striving for innovation.  Better still, this should reduce (if not eliminate) the nagging worry that you’ve missed a case.

    What’s different about this approach? Success depends on a lawyer’s ability to understand that facts and context of the case at hand, not that lawyer’s ability to construct the perfect search query.  It would no longer be a hit-or-miss proposition depending on your skill at constructing boolean or natural word search queries. (Of course, it would also depend on Lexis and Westlaw profiling and organizing their cases differently, or adopting search technology that is more sophisticated than simple word searching.) The result is that both lawyers, on the one hand, and Lexis and Westlaw, on the other hand, start focusing on their strengths.  Lawyers build their analytical muscles and the online research companies get better at organizing and delivering comprehensive results to you.

    Now imagine a law firm in difficult economic times considering whether to drop one online research provider in favor of another. What if one provider were to offer these comprehensive (and more appropriate) search results? Would there be any contest?

    In this blog post I’ve provided information on my innovation to Lexis and Westlaw (and any other online legal research provider interested in conquering this lucrative business).   I wonder which one will be hungry enough to adopt this proposal?

    [Photo Credit: Garry Willmore.  I'd highly recommend that you click on the photo above to read Garry Willmore's commentary on this photo.  It's priceless!]

    6 Comments
  • Store ClosingIf there is one theme that emerges from my many conversations with lawyers, it is their weariness with the seeming inability of legal IT vendors to produce applications that work in an intuitive, simple and effective way.  In fact, lawyers often seem resigned to struggling constantly with software that forces them to adapt to it, rather than fitting seamlessly into the way lawyers work.  Although it might seem that some vendors have gotten away with murder by over-promising while under-delivering, I suspect that this is a temporary situation.

    What leads me to this conclusion? Two growing trends in society:  Instant Gratification and Sloth. If you’re not sure about this, consider Blockbuster.  There was a time when large Blockbuster stores were fixtures in New York City.  In fact, at one point there was one Blockbuster store two blocks east of our home and another two blocks west.  In other words, we didn’t have to go far to find a movie when the mood struck. However, Blockbuster didn’t always have the movie we wanted and too many people I knew spent far too much money in overdue fees.  Enter Netflix.  At first, the choice was walking two blocks to get a movie today or planning ahead by two days to get a movie from Netflix, and thereby escape the risk of transaction fees and overdue fees. Of course, once Netflix started streaming movies, it provided the enticing additional benefit of instant gratification. Suddenly I could act on a whim and see a movie without ever leaving the comfort of my home.  In one fell swoop, Netflix satisfied tendencies to both sloth and instant gratification.  ((Or as I like to think of it, convenience and customer satisfaction.)

    As more online vendors cater to the growing trends of sloth and instant gratification, consumers are learning to expect to get a lot quickly online with little effort.  Do you want to book a trip?  It just a few clicks away. What about putting food on your table?  In New York, you can order your food online and need never set foot in a grocery store. So what happens to those traveling, food-ordering consumers when they use their office software in the practice of law? They have to expend a great deal more effort to get far less satisfactory results.  At the end of the day, this means frustration for the user and increasing pressure on law firm IT departments to “fix” the applications so that they work better. This in turn leads to more dissatisfaction with vendors.

    If you work in the legal industry and are weary of daily struggles with software, consider the following:  even if your legal IT vendors seem tone deaf, current levels of unhappiness present a wonderful opportunity for new players who are willing to listen carefully to the legal industry and then provide products that deliver excellent results for little effort.  We are seeing this with respect to the various third-party vendors who are providing tools to improve SharePoint. If that isn’t sufficiently encouraging, come to New York City to look for a Blockbuster store.  There aren’t any in my neighborhood any more.  What about yours?

    [Photo Credit: Andy Callahan]

    4 Comments