I’ve written about knowledge management and the importance of cultivating a learning law department. The other side of the equation is the teaching law department. At its simplest, a teaching law department is one that provides frequent knowledge transfers and feedback to its members. I enjoy seeing colleagues expand their skill sets and stretch their professional capabilities. Obviously, the hope is that this habit of continual learning will lead to expanded opportunities and rewards within a company; but when, on occasion, a colleague leaves the nest to pursue another role, I am always gratified if the training received in our department played a part in their success.
As part of our “teaching” efforts, we have instituted an externship program with our local Charleston School of Law. In this program, second and third year students join our department for twelve hours a week for a full semester. We’ve run the program for five semesters now and I have sharpened my view of how to bring the most value to both the students and to Blackbaud. My vision is to give each student a broad survey in all the areas that in-house counsel manage (e.g. commercial, IP, risk management, corporate governance, operations), and to have each student manage a particular project that they can call their own. For instance, in semesters past, we have had the externs create arbitration model forms, FOIA kits, marketing seminar materials, and taxable entity registration matrices. In this manner, the students get a general view of in-house counsel life, but also get a deeper dive into a particular area of importance to the company. It’s taken a few semesters for me to get the program just where I want it, and I’m still tinkering with a few aspects, but it’s been a rewarding experience.
It appears to be working for the students too. We are never at a loss for applicants and we have had two other regional law schools ask to be part of the program.
Also, we are starting to see our first set of externs graduate, and, as noted above, I am always gratified when I see them succeed, and hope that our externship program offered at least a little bit of help, even if only to inspire them to see how law can add value to an enterprise.
I myself have been fortunate to be a member of law departments where continuing learning was an important aspect of the company culture. Richard Rawson, the general counsel of Lucent from 1995-2002, was particularly enlightened in this respect. He made sure that the attorneys in his department were given the opportunity, as much as their experience level permitted, to rotate through different substantive areas. This not only broadened their legal expertise, but also gave counsel a more complete view of the different areas of the company, thereby deepening the value of each attorney to the company.
I am thankful to have had these learning opportunities at my various employers over the years and hope to share this same approach with my charges.
Sunday, November 28, 2010
Monday, November 22, 2010
Our Digital World (E-Discovery)
I originally wrote the following article on e-discovery in 2006 for a LexisNexis newsletter. Given that this is a holiday week, I thought I'd save some time and recycle this piece; plus, e-discovery is still highly relevant to the in-house practice. Also, I thought I'd better publish this before CSI is cancelled and the controlling analogy becomes obsolete.
Happy Thanksgiving to All !
All the Things We Leave Behind
Our Digital World: Transforming the Records of our Existence
Call it the CSI factor. Detectives on popular television shows, such as CSI, tirelessly scrutinize crime scenes for the fabric threads, skin cells, single hairs, and chemical traces that will clinch cases against evildoers. These shows highlight the detailed molecular fingerprint that each person leaves behind in the wake of their daily actions. We may think we pass our days with the evanescence of a ninja, yet we leave behind solid and indisputable evidence of our presence and our actions.
So too it is with businesses. In days gone by, the vast majority of our working thoughts and utterances evaporated inconsequentially like breath on a frosty morning. With the rise of the digital world and its new methods of communications (e-mail, instant messaging, voice mail), our quotidian efforts are now frozen and recorded, ready to be thawed out and played back for the benefit of a prosecutor or plaintiff.
Size estimates of the digital wake created by today’s corporations are truly astounding. Businesses create over seventeen trillion e-documents annually. Nearly sixty billion e-mails are generated each day (you may believe that you are cc’ed on at least two billion of these). Not only are there more e-mails than ever, but also the size of an average e-mail continues to grow. In a recent study, one research group found that an average individual sent or received nearly 10MB of e-mail each day in 2003 with an estimated increase to 46MB a day in 2005. Some researchers posit that 99% of all new corporate data is created electronically, with something less than a third ever being printed as a hard copy.
Adding to the ever-increasing layers of digital data are metadata, which is the additional information contained in an electronic version of a document (e.g. when created, when last modified, revision marks, stored comments) that its paper counterpart may not contain.
The ease of creating digital data is surpassed only by the ease of storing it. Back in the day, the costs and effort involved in creating and storing paper documents acted as a brake on the preservation of documents. Today companies routinely save nearly everything in back-up servers or stored tapes. One Fortune 100 company calculates that it routinely stores 800 terabytes of information, which would convert to an eye-popping half –trillion (yes, that’s a “tr”) pages if printed out. For a visual reference, one terabyte of data printed out would fill a small ballroom.
In my early days in private practice, I remember mind-numbing days spent reviewing ancient insurance policies and related letters to assess coverage claims. Looking back, I realize, however, that I only had to survey one hundred bankers’ boxes of materials. With the proliferation of digital documents, so easily created and so permanently recorded, such a task undertaken today is exponentially larger. Dante would certainly assign this task to a special circle of hell.
The ever-rising digital flood would only be an annoying social by-product of technology, like cell phones in restaurants, except for the complicating factors of the myriad laws and regulations governing the retention of documents and data. Sarbanes-Oxley, SEC regulations, the Internal Revenue Code and HIPPA all contain document retention mandates. Courts are also imposing significant penalties for spoliation of digitally stored documents, including monetary damages, adverse inference instructions and the occasional entry of judgment.
Court rules are beginning to reflect the immense importance of electronic discovery. For example, the District Court of New Jersey has promulgated a local rule that requires counsel to investigate a client's information management and other digital storage systems, including historical and backup information, prior to a discovery conference. Counsel must also list individuals with knowledge about the client's information management systems. Most critically, the local rule imposes an obligation for the parties to confer and attempt to agree on electronic discovery issues. Clearly, sophisticated handling of e-discovery and related issues provides a substantial advantage in both prosecuting and defending lawsuits.
However, even as the courts grapple with current electronic communications methods, technology marches on. If dealing with e-mail, its attachments and its metadata were not enough, there are new collaborative applications that promise to add more complexity to e-discovery. According to a recent Business Week article, companies such as Disney, Kodak, Yahoo! and the US military are switching their emphasis from e-mail to other software applications to create virtual workplaces.
These new applications include user-editable websites known as wikis (Hawaiian for “fast”), web diaries known as “blogs” (short for weblogs), instant messaging (IM), and groupware such as Microsoft's SharePoint. There is no doubt that a communication as ephemeral as IM is legally considered a document and is subject to the same retention policies and discovery requirements as any other written communication. Similarly, documents created using the other collaborative applications mentioned above will also be subject to discovery and the real-time collaborative nature of these software tools, so appealing for business users, will prove vexing for litigators.
The ultimate lesson is that our digital world mandates that a company take control of its record creation and retention process in ways infinitely more rigorous than ever before. Relegating document life-cycle management to an ad hoc system is a recipe for disaster.
On the front end of the document life cycle, employees must be trained and frequently reminded that despite the informal, uninhibited style encouraged by modern written communications, such documents are not private, not anonymous, nearly indestructible and subject to litigation discovery. Employees should consider whether a document is even necessary, particularly in areas that are controversial and subject to misunderstanding.
An additional side benefit of mastering the records management process is the salutary effect it can have on knowledge management efforts. Having a comprehensive document storage taxonomy can help a company leverage the knowledge inherent in its corporate databases.
It is beyond the scope of this article to tailor suggestions for the multitude of corporations facing electronic document retention and discovery issues, but prompt and thoughtful action is a must. Otherwise you may find yourself one day on a witness stand being called to account for some piece of data, some molecule of your self, that you didn’t even know you left behind.
Happy Thanksgiving to All !
All the Things We Leave Behind
Our Digital World: Transforming the Records of our Existence
Call it the CSI factor. Detectives on popular television shows, such as CSI, tirelessly scrutinize crime scenes for the fabric threads, skin cells, single hairs, and chemical traces that will clinch cases against evildoers. These shows highlight the detailed molecular fingerprint that each person leaves behind in the wake of their daily actions. We may think we pass our days with the evanescence of a ninja, yet we leave behind solid and indisputable evidence of our presence and our actions.
So too it is with businesses. In days gone by, the vast majority of our working thoughts and utterances evaporated inconsequentially like breath on a frosty morning. With the rise of the digital world and its new methods of communications (e-mail, instant messaging, voice mail), our quotidian efforts are now frozen and recorded, ready to be thawed out and played back for the benefit of a prosecutor or plaintiff.
Size estimates of the digital wake created by today’s corporations are truly astounding. Businesses create over seventeen trillion e-documents annually. Nearly sixty billion e-mails are generated each day (you may believe that you are cc’ed on at least two billion of these). Not only are there more e-mails than ever, but also the size of an average e-mail continues to grow. In a recent study, one research group found that an average individual sent or received nearly 10MB of e-mail each day in 2003 with an estimated increase to 46MB a day in 2005. Some researchers posit that 99% of all new corporate data is created electronically, with something less than a third ever being printed as a hard copy.
Adding to the ever-increasing layers of digital data are metadata, which is the additional information contained in an electronic version of a document (e.g. when created, when last modified, revision marks, stored comments) that its paper counterpart may not contain.
The ease of creating digital data is surpassed only by the ease of storing it. Back in the day, the costs and effort involved in creating and storing paper documents acted as a brake on the preservation of documents. Today companies routinely save nearly everything in back-up servers or stored tapes. One Fortune 100 company calculates that it routinely stores 800 terabytes of information, which would convert to an eye-popping half –trillion (yes, that’s a “tr”) pages if printed out. For a visual reference, one terabyte of data printed out would fill a small ballroom.
In my early days in private practice, I remember mind-numbing days spent reviewing ancient insurance policies and related letters to assess coverage claims. Looking back, I realize, however, that I only had to survey one hundred bankers’ boxes of materials. With the proliferation of digital documents, so easily created and so permanently recorded, such a task undertaken today is exponentially larger. Dante would certainly assign this task to a special circle of hell.
The ever-rising digital flood would only be an annoying social by-product of technology, like cell phones in restaurants, except for the complicating factors of the myriad laws and regulations governing the retention of documents and data. Sarbanes-Oxley, SEC regulations, the Internal Revenue Code and HIPPA all contain document retention mandates. Courts are also imposing significant penalties for spoliation of digitally stored documents, including monetary damages, adverse inference instructions and the occasional entry of judgment.
Court rules are beginning to reflect the immense importance of electronic discovery. For example, the District Court of New Jersey has promulgated a local rule that requires counsel to investigate a client's information management and other digital storage systems, including historical and backup information, prior to a discovery conference. Counsel must also list individuals with knowledge about the client's information management systems. Most critically, the local rule imposes an obligation for the parties to confer and attempt to agree on electronic discovery issues. Clearly, sophisticated handling of e-discovery and related issues provides a substantial advantage in both prosecuting and defending lawsuits.
However, even as the courts grapple with current electronic communications methods, technology marches on. If dealing with e-mail, its attachments and its metadata were not enough, there are new collaborative applications that promise to add more complexity to e-discovery. According to a recent Business Week article, companies such as Disney, Kodak, Yahoo! and the US military are switching their emphasis from e-mail to other software applications to create virtual workplaces.
These new applications include user-editable websites known as wikis (Hawaiian for “fast”), web diaries known as “blogs” (short for weblogs), instant messaging (IM), and groupware such as Microsoft's SharePoint. There is no doubt that a communication as ephemeral as IM is legally considered a document and is subject to the same retention policies and discovery requirements as any other written communication. Similarly, documents created using the other collaborative applications mentioned above will also be subject to discovery and the real-time collaborative nature of these software tools, so appealing for business users, will prove vexing for litigators.
The ultimate lesson is that our digital world mandates that a company take control of its record creation and retention process in ways infinitely more rigorous than ever before. Relegating document life-cycle management to an ad hoc system is a recipe for disaster.
On the front end of the document life cycle, employees must be trained and frequently reminded that despite the informal, uninhibited style encouraged by modern written communications, such documents are not private, not anonymous, nearly indestructible and subject to litigation discovery. Employees should consider whether a document is even necessary, particularly in areas that are controversial and subject to misunderstanding.
An additional side benefit of mastering the records management process is the salutary effect it can have on knowledge management efforts. Having a comprehensive document storage taxonomy can help a company leverage the knowledge inherent in its corporate databases.
It is beyond the scope of this article to tailor suggestions for the multitude of corporations facing electronic document retention and discovery issues, but prompt and thoughtful action is a must. Otherwise you may find yourself one day on a witness stand being called to account for some piece of data, some molecule of your self, that you didn’t even know you left behind.
Monday, November 15, 2010
Decisions, Decisions
Whenever you see a successful business, someone once made a courageous decision. –Peter Drucker
Corporations are essentially giant decision-making machines. The quality of an enterprise’s decisions largely determines its success in its chosen market. In his book, Decide and Deliver, Michael Mankins, a partner with management consulting firm Bain & Co., measures decision-making capability in four ways:
• Accuracy of decisions- what percentage of your decisions was correct;
• Speed- how quickly are decisions made;
• Decision yield- what percentage of decisions led to the desired actions to bring the decision to life;
• Effort and cost of decisions- how much time, money and effort goes into making decisions.
This is a useful lens to view decision-making capability, but I would add some qualifying comments and a few more key dimensions.
Accuracy of decisions may be the most deceptive measure of all because it assumes a steady state environment for decisions to play out. As such, the key assumptions that affect a decision should be clearly enumerated so that should a key assumption change, the enterprise can monitor the situation and correct course as necessary. The goal of management should necessarily be to make good decisions, but post-decision monitoring will allow leaders to “make decisions good” by adjusting on the fly.
Speed to decision may have a correlating effect to accuracy of decisions, but perhaps not. That would be a great study for a PhD Thesis. Until such work is done, I would suggest that the best approach is deciding at such time as the marginal value of more information falls below the marginal value of waiting. Easy to write, but hard to do. In my experience, people wait too long for more information to decide because they long for “perfect” information. To have that “perfect” information is a rare state and devalues the information that is available. I often tell my team that “There are six billion people on earth and no one knows this topic better than you, so make your best decision and be done with it.” That perspective frees people from the burden of waiting for the last piece of information.
Decision yield is more an operational concept. How often do your decisions yield their intended results? Perhaps a decision is too complicated to execute, is beyond the resource capability of an organization or relies on too many uncontrollable variables. A decision that cannot be carried out is not a good decision. Problems in this area may relate less to decision making, than to self-awareness.
Decision effort and cost seems to be an expansion of the concept of decision speed. Time is a resource, as is money and human effort. Is too much being spent on the process of reaching a decision? Or worse yet, is too much being spent on the process of not reaching a decision?
Beyond these four metrics, I see some additional ways to gauge decision-making quality.
One other factor is decision velocity- by this, I mean the sheer number of decision that an organization makes. As a company surveys its ecosystem, it should be continually assessing new opportunities to incorporate into its chosen strategy. This assessment of the new often falls to the wayside when dealing with the day to day routine, but is of critical importance to maintain adaptability in a changing business environment. Essentially, velocity measures not how a company decides, but the size of the universe that it makes decisions on. Narrowing the field of decision making is itself a sort of decision.
Another factor to measure decision-making adeptness is option preservation. In other words, does the decision preserve operational flexibility to make subsequent related adjustments if the original assumptions change? Leaders should make decisions that maximize future options.
Other operational aspects of good decision-making include ease of communication and consistency. Both of these attributes should contribute to an increased decision yield.
In life, decisions usually appear binary, “I do this or that,” but looking at decision-making in a deeper way makes one realize that decision outcomes are often more variable, multi-faceted and nuanced than expected. As corporate counsel, our role is to bring that nuance to corporate decision practices, and in so doing, improve the quality of the organization’s decisions and actions.
Corporations are essentially giant decision-making machines. The quality of an enterprise’s decisions largely determines its success in its chosen market. In his book, Decide and Deliver, Michael Mankins, a partner with management consulting firm Bain & Co., measures decision-making capability in four ways:
• Accuracy of decisions- what percentage of your decisions was correct;
• Speed- how quickly are decisions made;
• Decision yield- what percentage of decisions led to the desired actions to bring the decision to life;
• Effort and cost of decisions- how much time, money and effort goes into making decisions.
This is a useful lens to view decision-making capability, but I would add some qualifying comments and a few more key dimensions.
Accuracy of decisions may be the most deceptive measure of all because it assumes a steady state environment for decisions to play out. As such, the key assumptions that affect a decision should be clearly enumerated so that should a key assumption change, the enterprise can monitor the situation and correct course as necessary. The goal of management should necessarily be to make good decisions, but post-decision monitoring will allow leaders to “make decisions good” by adjusting on the fly.
Speed to decision may have a correlating effect to accuracy of decisions, but perhaps not. That would be a great study for a PhD Thesis. Until such work is done, I would suggest that the best approach is deciding at such time as the marginal value of more information falls below the marginal value of waiting. Easy to write, but hard to do. In my experience, people wait too long for more information to decide because they long for “perfect” information. To have that “perfect” information is a rare state and devalues the information that is available. I often tell my team that “There are six billion people on earth and no one knows this topic better than you, so make your best decision and be done with it.” That perspective frees people from the burden of waiting for the last piece of information.
Decision yield is more an operational concept. How often do your decisions yield their intended results? Perhaps a decision is too complicated to execute, is beyond the resource capability of an organization or relies on too many uncontrollable variables. A decision that cannot be carried out is not a good decision. Problems in this area may relate less to decision making, than to self-awareness.
Decision effort and cost seems to be an expansion of the concept of decision speed. Time is a resource, as is money and human effort. Is too much being spent on the process of reaching a decision? Or worse yet, is too much being spent on the process of not reaching a decision?
Beyond these four metrics, I see some additional ways to gauge decision-making quality.
One other factor is decision velocity- by this, I mean the sheer number of decision that an organization makes. As a company surveys its ecosystem, it should be continually assessing new opportunities to incorporate into its chosen strategy. This assessment of the new often falls to the wayside when dealing with the day to day routine, but is of critical importance to maintain adaptability in a changing business environment. Essentially, velocity measures not how a company decides, but the size of the universe that it makes decisions on. Narrowing the field of decision making is itself a sort of decision.
Another factor to measure decision-making adeptness is option preservation. In other words, does the decision preserve operational flexibility to make subsequent related adjustments if the original assumptions change? Leaders should make decisions that maximize future options.
Other operational aspects of good decision-making include ease of communication and consistency. Both of these attributes should contribute to an increased decision yield.
In life, decisions usually appear binary, “I do this or that,” but looking at decision-making in a deeper way makes one realize that decision outcomes are often more variable, multi-faceted and nuanced than expected. As corporate counsel, our role is to bring that nuance to corporate decision practices, and in so doing, improve the quality of the organization’s decisions and actions.
Sunday, November 7, 2010
Hallmarks of Great Law Departments
This past week we held our annual law conference to discuss the strategic plans for our law department in 2011. Our meetings prompted me to ponder the question of what makes a great law department. At risk of being overly alliterative, I would suggest that a premiere law department should have these three attributes- impact, integrity, and innovation.
By impact, I mean that the law department should be a meaningful, proactive contributor to the success of an organization. A successful department cannot simply be a passive member, a sort of referee, to the game of business. It must seek opportunities to add value, by improving processes, managing and removing risks, and cutting hard costs. A great quote I saw recently said that “business people don’t have legal problems, they have business problems that require legal expertise.” Providing this expertise to make a positive impact is the first duty of the in-house legal team.
Integrity includes, of course, honesty and ethical behavior. These attributes are sine qua non for any attorney. I would also include under the concept of integrity the idea of consistency of action and communication- that is to say, to do what one says that they will do. Furthermore, the concept of integrity encompasses correctness of advice and responsiveness to a colleague’s request. The great law department should be seen to be as dependable as a clock.
Ezra Pound wrote that “the law must be stable, and yet it must not stand still.” Innovation is the process of managing this change and cultivating openness to new ideas. One cautionary note is in order here, and that is that managers should not become entranced with seeking an industry-changing “silver bullet” innovation, but rather recognize that the best innovations may be found in improving a thousand simple day-to-day choices.
Pushing the alliteration past the breaking point, I recommend that the great law department not be intrusive, inflexible, or idea-heavy, which are the negative corollaries to the attributes noted above.
By intrusive, I mean that while the law department must have a positive impact on the enterprise, the enterprise does not exist for the law department. Being a lawyer does not exempt one from the need to behave in a collaborative manner with other stakeholders in an organization.
While there can be no flexibility in matters of honesty and ethics, a law department must be flexible in its approach to problem solving. I advise an approach of “no… because… but” for in-house lawyers. By that I mean, if one must say “no” to a particular idea, one should explain the “because” behind the “no” and then add “but have you considered this…” This method encourages flexibility and dialogue to reach satisfactory outcomes.
By idea-heavy, I mean swinging for the fences when a single will do. In other words, ideas are great, but only when they rest on a foundation of pragmatic and achievable action. Removing a few simple obstacles daily may be the best innovation of all.
I’d be interested in hearing other people’s views on what makes a law department great.
By impact, I mean that the law department should be a meaningful, proactive contributor to the success of an organization. A successful department cannot simply be a passive member, a sort of referee, to the game of business. It must seek opportunities to add value, by improving processes, managing and removing risks, and cutting hard costs. A great quote I saw recently said that “business people don’t have legal problems, they have business problems that require legal expertise.” Providing this expertise to make a positive impact is the first duty of the in-house legal team.
Integrity includes, of course, honesty and ethical behavior. These attributes are sine qua non for any attorney. I would also include under the concept of integrity the idea of consistency of action and communication- that is to say, to do what one says that they will do. Furthermore, the concept of integrity encompasses correctness of advice and responsiveness to a colleague’s request. The great law department should be seen to be as dependable as a clock.
Ezra Pound wrote that “the law must be stable, and yet it must not stand still.” Innovation is the process of managing this change and cultivating openness to new ideas. One cautionary note is in order here, and that is that managers should not become entranced with seeking an industry-changing “silver bullet” innovation, but rather recognize that the best innovations may be found in improving a thousand simple day-to-day choices.
Pushing the alliteration past the breaking point, I recommend that the great law department not be intrusive, inflexible, or idea-heavy, which are the negative corollaries to the attributes noted above.
By intrusive, I mean that while the law department must have a positive impact on the enterprise, the enterprise does not exist for the law department. Being a lawyer does not exempt one from the need to behave in a collaborative manner with other stakeholders in an organization.
While there can be no flexibility in matters of honesty and ethics, a law department must be flexible in its approach to problem solving. I advise an approach of “no… because… but” for in-house lawyers. By that I mean, if one must say “no” to a particular idea, one should explain the “because” behind the “no” and then add “but have you considered this…” This method encourages flexibility and dialogue to reach satisfactory outcomes.
By idea-heavy, I mean swinging for the fences when a single will do. In other words, ideas are great, but only when they rest on a foundation of pragmatic and achievable action. Removing a few simple obstacles daily may be the best innovation of all.
I’d be interested in hearing other people’s views on what makes a law department great.
On Diversity
Continuing the recent theme of hiring and performance management, I want to add a thought on diversity in the workplace.
A few years ago, I went to a seminar on diversity in the workplace. The thesis of the speaker was that very few people intentionally discriminate, but rather that individuals tend to be attracted to those who are like-minded and like-experienced. I’ve seen no hard data on how prevalent this phenomenon is, but I can see how this might happen. People naturally tend to look into their own networks when seeking a vendor, consultant or a job candidate and may be reluctant to stray too far out of their comfort zones.
Knowing that this “like-attracts-like” propensity can be subtle and subconscious, I strive to cast a wide net when making sourcing and hiring decisions and during the decision process I frequently take a step back to see if I have cultivated a sufficiently wide range of options. As it happens, two of my first three permanent hires and six of my first nine temporary hires have been from diverse backgrounds. Moreover, the majority of our billed hours from law firms in the past year have also been worked by attorneys from diverse backgrounds. I can’t take credit for those numbers because I didn’t do anything special to achieve that result, other than to seek as deep a talent pool as possible, and to remain open now and then to trying new approaches.
A few years ago, I went to a seminar on diversity in the workplace. The thesis of the speaker was that very few people intentionally discriminate, but rather that individuals tend to be attracted to those who are like-minded and like-experienced. I’ve seen no hard data on how prevalent this phenomenon is, but I can see how this might happen. People naturally tend to look into their own networks when seeking a vendor, consultant or a job candidate and may be reluctant to stray too far out of their comfort zones.
Knowing that this “like-attracts-like” propensity can be subtle and subconscious, I strive to cast a wide net when making sourcing and hiring decisions and during the decision process I frequently take a step back to see if I have cultivated a sufficiently wide range of options. As it happens, two of my first three permanent hires and six of my first nine temporary hires have been from diverse backgrounds. Moreover, the majority of our billed hours from law firms in the past year have also been worked by attorneys from diverse backgrounds. I can’t take credit for those numbers because I didn’t do anything special to achieve that result, other than to seek as deep a talent pool as possible, and to remain open now and then to trying new approaches.
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