(Not Quite) 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.


Gratitude on Tax Day

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.



Doing the Right Thing: KM and Best Practices

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.