Above and Beyond KM

Let’s start with the premise that you’re fantastic. In fact, you’re well-trained, experienced and routinely exhibit good judgment. So, do you need a checklist? Ask a pilot or a surgeon.  Surgeon Atul Gawande did exactly that and learned some interesting — and sobering — things.  In a recent interview, he discussed his latest book, The Checklist Manifesto: How to Get Things Right, which recounts his exploration of the value of checklists.  Time and again, he found that checklists were an effective antidote to ignorance, uncertainty and complexity.  He and his team developed a two-minute checklist that covered some basics for surgery (e.g., do we have enough blood and antibiotics?), as well as some basics for good teamwork (e.g., does everyone in the Operating Room know the name of each person in the room?).  They then tested these lists in eight different hospitals.  The results were stunning.  For example, when they took the time to make introductions, they had a 35% decline in deaths and complications related to surgery.

Creating checklists for routine procedures makes sense.  They allow you to act quickly and confidently.  Creating checklists for complex situations are even more important since these are precisely the times when you are most beset by uncertainty and may not even know what you don’t know.  In these cases, it’s helpful to have a checklist that can help pin down facts and eliminate areas of concern.

After the trial period in eight hospitals, 80% of the surgeons involved said they would continue to use the checklist.  Interestingly, 20% remained resistant.  They believed that the checklists were a waste of time and didn’t add value. However, when asked if you were having an operation, would you want your surgeon to use the checklist, 94% of those resisters said they would.

So why are professionals resistant to checklists?  Atul Gawande thinks that this is because experts have a hard time admitting their own fallibility.  There are also experts (be they lawyers or knowledge managers) who approach their work as “artistes.”  Therefore, they believe their creative outflow cannot be reduced to a dry checklist.  Finally, there are the thousands of us who race through our days just struggling to get things done.  In the press of business, it is hard to take the time to stop and reflect on what works and what doesn’t.  It’s harder still to take the time to document it.  Tragically, when an error or accident happens, we are forced to stop and think about what went wrong.  Under those circumstances, the analysis is charged, value-laden and painful for all concerned.

Is there a two-minute checklist you could develop this week that might help strengthen your work flow or work product?  If so, can you afford not to make the investment of time required to create that checklist?

[Photo Credit:  Adam Sacco]

Some folks aspire to be as beautiful as a model, while other folks aspire to have a model on their arm. Lawyers, by contrast, aspire to have a collection of models. Model DOCUMENTS, that is.  And, as long as lawyers want model documents, law firm knowledge management personnel are going to try to find ways to provide them.  But, should they?

As mentioned in my earlier post, KM’s Worst Enemy, model documents represent a massive investment for a firm because it is very hard to throw a model document together overnight. If you’re going to do it correctly, you’ll have to spend time and effort to create a model that meets both your practice quality and risk management needs. Ideally, model document drafting will incorporate the experience of several lawyers in the relevant practice.  This means that law firm KM personnel must recruit and retain lawyers to help with the drafting.

At a recent meeting of law firm knowledge managers, I asked how many of them had successfully recruited under-utilized lawyers in their firm to update their collection of models.  The responses were consistent and discouraging.  Even when lawyers have a lighter billable workload, they tend to be disinclined to assist with drafting or updating model documents.  The solution for some firms has been to recruit practice support lawyers who work on a nonbillable basis to generate these materials.  However, this approach has its own challenges and, to do it correctly, you may well need a team of support lawyers who have expertise in a wide range of practice areas.  The solution for other firms has been to obtain model documents from traditional legal publishers or subscribe to the resources offered by practice support companies such as the Practical Law Company.**  PLC takes care of the drafting and updating, which is a huge improvement over what many firms can do for themselves.  Each subscribing firm then trains its lawyers to use these materials in a manner that is appropriate for that firm’s practice and clients.  And, of course, that firm has to pay a subscription fee for the service.

Before thinking about generating models internally or obtaining them externally, it would be worth examining further how many models you really need.  Many firms assume that a model constitutes a statement of best practices and, therefore, the more models you have the better.  A recent interchange on best practices with Tom Young of Knoco sharpened my understanding of best practices.  For the purposes of this discussion, I’d draw your attention to his concepts of standardization and innovation.   In applying this to the law firm context I wonder whether we would be wiser to concentrate on creating (or obtaining) model documents only for those instances where it is imperative that we ensure standardization.  In all other cases, would it be a better use of firm resources to produce a practice guide, checklist or issues list rather than a full-blown model document?  Until you consider these questions in the context of your firm’s practice, you may find yourself frustrated or disappointed as you try to find new and creative ways to coax your colleagues into creating models.

Dating a beautiful model may be your dream, but in a law firm it comes at a price.

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Further Reading on Best Practices:

• Resting on Your Laurels Ruins Best Practices
• Just Tell Me What Works!
• Best Practices vs Next Practices

**Disclosure:  I’m a member of the Practical Law Company’s Advisory Board.

[Photo Credit:  UltimateGraphics http://www.flickr.com/photos/29956195@N08/ / CC BY-NC 2.0 ]

Yesterday’s post, Just Tell Me What Works, discussed some of the weaknesses arising from a blind obsession with best practices. The chief weakness is the false belief that someone else’s solution will work perfectly for you.  But what if you avoid that weakness and actually do the hard work of thinking for yourself in order to create a definitive statement of a best practice in your context.  Are you done? As Joe Firestone reminded me today, unfortunately not.

Once you’ve successfully created a best practices (or next practices) document, it’s tempting to breathe a big sigh of relief, celebrate your accomplishment and then rest on your laurels.  With the passage of enough time, however, you end up with a moth-eaten collection of practices that are interesting primarily for historical purposes.  Your much vaunted “best practices” are now woefully out of date and may even be dangerous from a risk management perspective.

So what’s the solution?  Under the old model, you would ask the chief author of each best practices document to assume responsibility for updating the document as necessary.  Unfortunately, busy schedules (and disinterested authors) can make this difficult.  Yet, we’ve persisted in pursuing this model because it allowed the author to maintain control over a resource that was considered too important to have distributed authorship.  So, you focus on perfect control and get imperfect content.

A related problem with this approach has been identified by Joe Firestone and Steven Cavaleri as a gap between the claims of a best practices document and its track record.  Have those best practices been tested?  Have they passed the test?  If so, is that reflected in the record?  If not, what improvements are necessary?  To do this effectively, you need different folks interacting with the best practices document over time and reporting their results.  This can be done through the imaginative use of Enterprise 2.0 tools (e.g., collaborative tags and annotations), but it does require a willingness to relinquish a measure of control.

For best practice documents and all the other “solutions” promoted by the  firm, Firestone and Cavaleri advocate building a living and breathing knowledge base that provides current information and promotes innovation:

For flexibility and variety, the real knowledge bases we have in mind, ought to be distributed, rather than centralized, and Enterprise 2.0 and 3.0 technology including tagging, annotating, and mashups, and new semantic web applications, should be applied to create both a new and richer layer of meaning and integration across stove pipes. To be effective in creating high quality knowledge bases that will be most useful in enhancing thinking up new ideas, social computing technology must be applied both collaboratively, and in a way that includes all ideas, no matter how new and untested they are. The rule should be to let the knowledge base reflect the track record of performance of ideas comprising solutions, or the absence of such a track record, and leave it up to people to factor that into their own creative thinking.

At the end of the day, identifying best practices is the first rather than the final step.  You then have to test them regularly for currency.  If you give into the temptation to rest on your laurels, you’ll quickly turn those best practices documents into quaint historical artifacts.  Now, please explain to me how that helps your firm manage risk?

[Photo Credit:  Elizabeth Thomsen]

Sometimes we just want to be told what to do. To be honest, we all have days when that seems far preferable to thinking for ourselves. Unfortunately, it’s exactly this temptation that has led us to make a fetish of “best practices” in knowledge management.  However, we would do ourselves a great favor if we were more candid about the real value of best practices.

In his October Newsletter, David Gurteen includes a great piece entitled On Best Practice and Thinking for Yourself! In it he explains why slavishly following so-called “best practice” may not always be the right approach.  In fact, best practice may sometimes be illusory.  Best practices are, in theory, a wonderful thing.  After all, who wouldn’t want to know how the best and the brightest do something?  The problem is that the solution those exceptional folks have found works precisely because it is their solution.  It succeeds because it was created for their context and was carried out by them.  Unless you are operating under exactly the same circumstances (and with the same type of people), there is no guarantee that it will work equally as well when you try to make it your solution.

The sources David Gurteen cites point to the true value of “best practices.”  That value doesn’t lie in having a foolproof recipe.  Rather, those “best practices” are most useful as examples of what can be done (rather than what must be done) to address a specific situation.  You could then take those examples and adapt them to the particularities of your situation.  Better yet, you should take those examples and use them as a launching point to spur some truly creative thinking on your part and devise a solution that is uniquely suited to your circumstances.  That creative thinking should lead you to Next Practices rather than Best Practices.  And, in so doing, help you to discover practices that will work more powerfully in your context.  Now, be honest — isn’t that the best practice for you?

[Photo Credit:  Joan Thewlis]

In Dave Snowden’s view, “everything is fragmented.” And, he thinks this is a good thing. But it has some challenging implications for knowledge management generally and law firm knowledge management specifically.

Mark Gould’s comment on my previous post (Not Quite) Best Practices pointed me to Derek Wenmoth’s blog post on Best Practice vs Next Practice. Derek makes the interesting observation that while best practice is a snapshot of what we know has worked well in the past, next practice is an attempt to take that prior experience and improve upon it rather than merely replicate it. This notion of next practice fits nicely with the Appreciative Inquiry approach to change. Here’s the money quote from Derek:

Best Practice asks “What is working?”, while Next Practice asks “What could work – more powerfully?”

Best practice has often functioned as a type of insurance policy: if you’ve followed best practices, who can criticize? However, the focus on next practice moves us out of the insurance policy nature of best practice into imagination and innovation. Very dangerous. And yet, so necessary.

Mark says that he might blog on this concept of next practice. I’m looking forward to reading his observations. In the meantime, thank you Mark and Derek for giving us a more nuanced way of thinking about best practices.

When are “Best Practices” Not Best Practices? That’s the question addressed in a recent Harvard Business blog post by Scott Anthony. In this post he makes the valid point that there are very few best practices that work 100% of the time. In his view, the efficacy of best practices is situational:

For just about any business challenge, there really is no such thing as absolute best practices. Best practices are very dependent on the specific challenge, context, and capabilities of the company.

Before blindly copying a competitor’s best practice, or assuming a historic best practice will continue to provide positive results, ask three questions:

• Are market circumstances similar?
• Are corporate contexts similar?
• Is the practice “modular,” with few interactions with other corporate systems?

If the answers to these questions are yes, then mimicking best practice can succeed. If the answer to any of these questions are no, think twice. Following so-called best practice might lead to disappointing results.

In the context of law firm knowledge management, there may be some additional issues we have to face. Best practices within a law firm can cover content (e.g., model documents) and process (e.g., electronic discovery procedures). But arriving at best practices regarding content requires a different kind of effort than that required for a recommended process.

With respect to process-related best practices, gathering and analyzing a large cross-section of firm experience should reveal what behavior is more likely than not to lead to success (or avoid disaster). In this case, the task is primarily to identify and describe those preferred behaviors in writing, and then train colleagues to follow them.

When it comes to content-related best practices, however, success depends largely on the ability of the lawyer to comprehend a business proposal and capture it in the form of a legally-enforceable agreement. A best practices guide can help the lawyer with the analytical and mechanical process of preparing that agreement, but it generally cannot dictate the final words. Those words are almost entirely dependent on the details of the specific business deal. So the challenge of content-focused best practices is to reduce the number of moving parts, to limit the areas in which the lawyer must exercise drafting discretion. In practice this means ensuring you have bullet-proof boilerplate language, augmented by a large annotated clause library on which the lawyer can draw in lieu of drafting from scratch.

But here’s an additional wrinkle: once you know the right way to do electronic discovery or a due diligence review, for example, that guidance holds until there is a major change in technology or the allocation of risks. By contrast, best practices with respect to content are in a constant state of flux. Market conditions change and have an immediate impact on content. Equally pressing are refinements arising from changes in case law and legislation. In this context, creating and maintaining content-related best practices requires constant vigilance and consistent follow through. And now we’re talking real money.

In an earlier discussion among large law firm KM managers, we bemoaned the paucity of written best practices in most firms. Given the costs and complications of creating and maintaining content-related best practices, perhaps this lack is completely understandable.

April 15 is the day we count our blessings and then give a cut to Uncle Sam. While the offering to Uncle Sam may be grudging, it is with absolute sincerity that I’d like to thank the folks who have helped launch my new blog.

First and foremost, Joy London, whose recommendation in excited utterances led to a remarkable spike in my readership. Thank you, Joy, for the graciousness and generosity of your recommendation. And thank you for the private encouragement you’ve given me as I start down this blogging path. You blazed a trail for the rest of us a long time ago and I’m grateful for your expertise and advice.

In the inimitable words of Dennis Kennedy: “I have no doubt that Tom Mighell has mentioned many more new legal blogs than the number of blogs that have links back to his blog. He’s a saint – I’m not quite that saintly.” Dennis makes this observation in the course of a post entitled “What are the Most Common Mistakes a New Legal Blogger Makes,” in which he reminds bloggers who are lucky enough to be mentioned by a more established blogger that they should not be delinquent in thanking the experienced blogger. So, without further adieu,

Dear Tom Mighell and Kevin O’Keefe:

Thank you, Tom Mighell, for mentioning my neophyte efforts on your blog, Mighell’s Blawg of the Day. And thank you, Kevin O’Keefe, for picking up that citation and giving it more airtime on Real Lawyers Have Blogs. I very much appreciate the boost and look forward to joining in the growing conversation among blawggers that both of you clearly are trying to foster.

Best,
Mary

Best Practices should be right up there with motherhood and apple pie. So why did a gathering of large law firm knowledge managers conclude that law firms were lagging behind other businesses in implementing best practices?

About one year ago, I participated in a lively panel discussion about best practices in law firms. My colleagues on the panel were very experienced, well-regarded knowledge managers from top tier New York City law firms. In the audience were knowledge managers from large law firms all over the United States and Canada.

With the exception of one firm (mine), it appeared that the consensus view was that lawyers weren’t terribly interested in identifying, documenting and following best practices. Some participants posited that this was due to the fact that lawyers are artisans and as such were much more interested in pursuing their craft individually rather than establishing corporate guidelines. Others suggested that lawyers had fallen into the habit of assuming that the best version of an agreement was the one signed in their most recent deal. However, as recent law suits in Delaware have demonstrated, not every signed agreement is a model of clarity and concision.

So what can a knowledge manager do to begin to address this? Focus on areas of the business that are subject to high levels of risk: examples in a law firm are opinion letter writing, electronic discovery, etc. And then begin to document your firm’s current policies and practices in this area. Because of the driving need for effective risk management, these are areas in which lawyers are most likely to be willing to give up some of their individual creative freedoms in order to ensure the safety of the firm.

Once you’ve dealt with the high risk areas, you can turn to areas of practice where there is significant volume or routinized work. By establishing best practices here, you can make these practices more efficient and more profitable. These obviously are great incentives for lawyers and their firms.

Of course the catch in all of this is establishing sufficient consensus within your firm regarding what constitutes a best practice. This is the point at which many attempts at documenting best practices fail. It’s easy if you have a single authority in the area who can simply designate a best practice. In the absence of such authority, your next best bet is to work with senior people in your organization who understand the scope of the risk and are willing to act to reduce the firm’s exposure in this area. Failing that, use the best judgment of your colleagues (as reflected in their work and client advice, as well as internal training materials) to derive a list of best practices. Then make those available, not as a gold standard or firm policy, but rather as recommendations. If these practices are sensible, they will be adopted.

If you would like to read more about the panel discussion on law firm best practices, see Ron Friedmann’s helpful article, KM Best Practices.