Hiding From Bad News?

Are the lawyers you know hiding from bad news? Whether you work in a law firm or an in-house law department, this is a question you have to ask yourself.  As you survey the range of lawyer responses to the economic challenges of the last few years, think about the lawyers you work with.  How honestly have they faced the mirror? How penetrating has their analysis been of the facts on the ground? How creative their proposals? How open have these lawyers been to change?

This last question is particularly difficult.  I’m not talking about the change that inevitably comes from making tough decisions about cutting costs. After all, nearly every law firm I know has done some belt tightening over the last few years. Some are even considering deeper cuts in 2011. Rather, I’m talking about a willingness to think hard about an alternative business model. Are the lawyers you know doing this?

As my regular readers know, my tendency is generally towards optimism in most things.  However, there are signs that indicate that optimism may not be entirely warranted in this instance.  While there always are some noteworthy law firms and in-house counsel who actively look for better ways to do things, what about the rest of the profession? Consider the following:

  • Ron Friedmann commented recently on two disturbing observations: the challenges in-house counsel face in demanding changes from their external counsel (see his posts on the under use of ebilling and buying power) and the unwillingness of lawyers to admit that they can no longer run from numbers.
  • Doctors undergo a mandatory peer review to determine the causes of failure in patient care.  (For a layman-friendly introduction to these morbidity and mortality (M&M) conferences, see the work of Dr. Atul Gawande (or read this review).) Similarly, members of the military undertake after action reviews.  Some organizations have begun to understand the value of “failure parties.” When was the last time members of your firm completed such a review on a client matter or a business initiative? A doctor I know offered to do an M&M conference-style review for the partners of a major US law firm.  Even though this doctor is an expert in this type of analysis, the lawyers in question decided that they would just rather not open themselves up to this level of scrutiny. How would your firm have responded?
  • Aric Press recently reported that The American Lawyer’s annual Law Firm Leaders Survey indicates that the heads of the firms surveyed are frustrated by the slow rate of change within their firms and the profession.  And what was their response when asked what disappointed them the most? “The most common response was the failure of their partners to develop new business, understand the new challenges they faced, and/­or give up their bad old habits.” Interestingly, the resulting preferred course of action appears to be to switch teams: “If the current partners are the problem, the expressed solution is all too clear: a new and better set of partners. In fact, the failure to recruit just such stars was a frequently expressed disappointment.”

While a handful of anecdotes may not add up to an overwhelming case, they may suggest movement in a direction that is not altogether encouraging.  If you’re reading the tea leaves in the same way, what’s to be done?

[Photo Credit: Susan NYC]

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The Value of Checklists

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]

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