Designing Software for the Workflow

There's an interesting article on Customer Relations Management (CRM) software in this month's California Lawyer.  It does a nice job describing what these applications do,  as well as some of their limitations.  And I was both surprised and pleased to read this section:

But in practice, most CRM systems do require a change in the way attorney workflow is handled on a day-to-day basis. Building a robust CRM system depends on a resource many firms are reluctant to surrender: attorney time.

"Your success or failure with CRM software is less a technology issue and more a process problem," says Andy Havens, a legal marketing consultant and founder of Sanestorm Marketing. "It has more to do with what you're going to require lawyers to do as part of their daily work than [with] the features of the software. You have to know what things your lawyers are willing to do that are trackable."

I find this dynamic to be true with any technology roll out, unless it's completely on the backend.  A great deal of management time goes into developing and then training on the new workflow.  If possible, our technology team works to customize the application to fit our workflow preferences, and facilitate any necessary changes to the workflow as gently as possible.

But isn't it amazing that many developers expect the users to model their processes around the application, rather than the other way around?  And it's not necessarily about customizability.  A lot of enterprise software, while including many powerful features, seems to have been developed with only minimal consideration of the workflow it is designed to facilitate.  Workflow should be a key element of  software design.

D. Mark Jackson

Reporting Projects

In reporting to clients, I now include a bulleted list with our recommendations for upcoming activity over some appropriate period of time.  If little is going on, it might be a list of activity for the next six months.  If trial is near, it might be activity for the next two weeks.

Regardless, this list should be inclusive of all active projects -- and I mean projects as defined in GTD: "any desired result that requires more than one action step."  The list would also include an outcome with a single action step, assuming the activity is significant enough to need to communicate.  Such a list might look like this:

• Complete retention of experts and disclose them on ____
• Prepare our experts for deposition in _____
• Continue efforts to obtain third party records from ___
• Analyze Plaintiff's responses to supplemental written discovery
• Prepare trial submissions, beginning in ____

The primary purpose of this list is to effectively communicate with the client. I think it's a nice clean way to distill down what is going to be happening next. A secondary purpose, however, is to make sure the client and I are operating off the same "Project List."  In other words, the list in my report ought to be the same as the list in my personal organization system, and if it isn't, than I need to make some adjustments.

D. Mark Jackson

A Note About Earlier Posts

In early 2008, I wanted to start blogging and began experimenting with material.  Having decided to launch this blog, officially and publicly, I want to include some of that earlier work. So, below are a few of my earlier "posts," with assigned dates from roughly the time I wrote them.  I hope you enjoy this material. D. Mark Jackson

What Makes a Good Lawyer?

Marjorie M. Shultz, a former Berkeley law professor and psychologist Sheldon Zedeck are trying to find out. The Law School Admissions Council is funding their research into alternatives to the LSAT, the standardized test for law school candidates. They have designed a test that focuses on predicting success, not just in law school, but as lawyers. The new test is based on a survey of Berkeley alums:

The survey produced a list of 26 characteristics, or “effectiveness factors,” like the ability to write, manage stress, listen, research the law and solve problems. The professors then collected examples from the Berkeley alumni of specific behavior by lawyers that were considered more or less effective.

Using the examples, Professor Shultz and Professor Zedeck developed a test that could be administered to law school applicants to measure their raw lawyerly talent.

Instead of focusing on analytic ability, the new test includes questions about how to respond to hypothetical situations. For example, it might describe a company with a policy requiring immediate firing of any employee who lied on an application, then ask what a test taker would do upon discovering that a top-performing employee had omitted something on an application.

More than 1,100 lawyers took the test and agreed to let the researchers see their original LSAT scores, as well as grades from college and law school.

The study concluded that while LSAT scores, for example, “were not particularly useful” in predicting lawyer effectiveness, the new, alternative test results were — although the new test was no better at predicting how well participants would do in law school. Unlike the LSAT, the new test did not produce a gap in scores among different racial or ethnic groups.

There are serious limitations to the study, as the article points out, and law schools are far from ready to dump the LSAT. But this research reflects the legal community's recognition that being a good lawyer requires more than analytical ability.  For example, success as a lawyer requires the ability to communicate analysis with good writing or presentation skills, under time pressure, and in high stress situations. Lawyers increasingly need to work collaboratively. The ability to listen is critical, but often lacking.

The new test is a positive step forward.

D. Mark Jackson

Distracting Ourselves to Death

Bryan Appleyard, after reviewing several books on the issue, argues we are distracting ourselves to death:

The opposite of attention is distraction, an unnatural condition and one that, as Meyer discovered in 1995, kills. Now he is convinced that chronic, long-term distraction is as dangerous as cigarette smoking. In particular, there is the great myth of multitasking. No human being, he says, can effectively write an e-mail and speak on the telephone. Both activities use language and the language channel in the brain can’t cope. Multitaskers fool themselves by rapidly switching attention and, as a result, their output deteriorates.

....

Chronic distraction, from which we all now suffer, kills you more slowly. Meyer says there is evidence that people in chronically distracted jobs are, in early middle age, appearing with the same symptoms of burn-out as air traffic controllers. They might have stress-related diseases, even irreversible brain damage. But the damage is not caused by overwork, it’s caused by multiple distracted work. One American study found that interruptions take up 2.1 hours of the average knowledge worker’s day. This, it was estimated, cost the US economy $588 billion a year. Yet the rabidly multitasking distractee is seen as some kind of social and economic ideal.

On the other hand, Mark Chandler, General Counsel for Cisco Systems, recounted this funny story last year (to great positive reception):

Some of you may know Dick Gross, a mathematician who is Dean of Harvard College. I once heard him tell a group of parents that if they want to communicate with college-age kids, they better learn Instant Messaging. He told of coming into his 16 year old son’s room while the son was doing homework, and finding five IM conversations going at once on the computer. He asked, “How can you get work done when you have five conversations going?” His son answered, “Dad, you don’t understand, this is how we communicate. For us, IM is like email was when you were a kid.” I must ask, “If five conversations are open at once, how do you bill the time?”

The increase in easily accessible information has certainly made some aspects of law practice more efficient. Finding documents and up to date information on a case can be pretty easy. But the constant distraction of email, phone calls, and other inputs, distracts lawyers from sustained thought. Two hours dealing with your email inbox adds little value.  But two hours --uninterrupted --  can improve a brief remarkably.

And distractions make the lawyer's job stressful.

One of the biggest challenges facing lawyers is using information sharing tools, while still enjoying time for concentrated thinking. I think we can meet this challenge. More to come on how to do this.

D. Mark Jackson

The End Is Near

Is the legal field about to undergo a radical transformation?   Richard Susskind says so. D. Mark Jackson

Respect for Associates

Ben W. Heineman, Jr., and David B. Wilkins pen a must read article in the American Lawyer entitled "The Lost Generation?"  The authors present a compelling argument as to why, despite ever increasing associate salaries at big firms, retention rates are plummeting.  Among the factors they cite:

• Too much drudge work
• Large teams and too little individual responsibility
• Little opportunity to see the big picture
• Inadequate time for communication between partners and associates
• Unwillingness of corporate clients to take risks

What caught my eye, however, was this observation:

The answer is not late-night dinners from The Palm on silver servers. It is a stimulating, mind-expanding experience at the beginning of their professional careers that treats associates as adults, gives them responsibility, and, most of all, communicates the intellectual and practical excitement of confronting the significant issues that the best partners enjoy.

At least according to these authors, it sounds like what may be missing is "Respect for People."  In other words, rather than being cultivated as professionals, associates are treated primarily as variables in the billable hours equation. Respect for people, of course is the fundamental philosophical foundation for any lean enterprise.

Solutions? The authors recommend loaning of associates to corporate clients and public agencies, more time for pro bono work, and more focus on professional development.

I would add that firms should ask themselves some uncomfortable questions. On important matters, how often are junior members given the opportunity to contribute meaningfully? How often are they part of transforming internal business processes?

While law practice has the potential for drudgery, it's no worse than in manufacturing? If Toyota can retain line workers for their entire careers, surely law firms can find a way to keep associates satisfied and productive too.

D. Mark Jackson

Lean Writing

Can lean improve your writing?  Let's take two essential lean concepts and see how they apply.

Minimize Waste

Eliminating unnecessary words makes for good writing. Ask any editor or writing coach. Removing unneeded words is reducing waste in your writing.

Think of editing as a form of kaizen, the process of continuous improvement.

Respect for People

How often do litigators exchange briefs or letters filled with invective and hyperbole?  By all accounts, judges hate this. This style of writing may satisfy the emotional needs of lawyers and their clients, but it rarely serves their interests. Yet many lawyers persist in thinking that diligence requires them to be mean and disrespectful. As Gary Kinder teaches, judges want to be fair and are more likely to be persuaded by your writing if it is fair too. Therefore, showing respect for your adversaries and their lawyers makes you a better advocate.

D. Mark Jackson

Lean Document Review

Bruce MacEwen of Adam Smith, Esq., shares his interview with Ray Bayley, co-founder of NovusLaw. You'll likely walk away with a much different view of business process outsourcing. One of the major concerns about outsourcing legal work, including document review, is quality. Case managers wonder whether contract lawyers can provide the same quality output as highly paid associates working at law firms, in particular large law firms with plenty of resources. Bayley responds:

"Quality is one of our 'cornerstone' initiatives, along with ethics, security, and business continuity planning—all of which report directly to me.   In fact, we started our quality program before we even started the company.  But now our 'lean six Sigma' processes and quality control programs are certified by Underwriters' Labs, with full-time six sigma black belts on board that do nothing else but focus on quality.  'Lean,' which is a term that comes from the Toyota Production System, stands for the methodology used to eliminate non-value-added time and activity, a/k/a waste.  'Waste,' in turn, has a very simple definition:  Anything the client wouldn't want pay for if they were given a choice.

"Six Sigma is what we use to eliminate defects as we measure and analyze our work processes.  Typically, undocumented processes will yield 20,000—60,000 defects per million opportunities.  Six Sigma is designed to get that down to fewer than 4/million.  On our most recent document review we performed at Five Sigma, or approximately 200 defects per million.  By the way, that's about 200 times better than the average in the legal industry today."

As I wrote recently, this is the first time I've read about an entity applying lean production concepts to legal services.  And the document review process, of course, has the potential for involving a great deal of waste, making lean a good approach. At least as important as minimizing waste, however, the Toyota Production System emphasizes the value of respect for people.  Bayley also outlines his approach on this issue:

"Obviously it starts with who we hire: with recruitment.  The average lawyer at  NovusLaw has approximately eight years of experience, and we believe we've been able to attract talent on a par of those in AmLaw 100 firms with comparable experience.  Everyone interviews with me and each of my partners, as well as going through nearly a half dozen other interviews to ensure cultural compatibility.  NovusLaw is not for everyone.  If you can work independently, have a strong work ethic, and if you're smart about BPO—and if you have a sense of adventure—then you're a good candidate for us.  And I think our attrition statistics bear this out:  Only 3-4%/year.  It's a tough process to get in, but once you're in, you're in."

These are good numbers. Bayley's recruitment method reminds me of Toyota's when it opened its facility in Hebron, Kentucky. His organization obviously is taking a different approach to working with its people.

Now, these statements raise a lot of questions. How do you define "defect" in the ambiguous world of identifying relevance and privilege?  This measure doesn't easily translate from the manufacturing context. What specific processes do they use to minimize waste? What kind of waste is it? How do you show respect for people, while tasking them with some of the most repetitive and least glamorous work in the legal field?

But the real lesson here has nothing to do with business process outsourcing. It's that lean has something to offer the world of legal services. Indeed, nothing prevents lawyers and law firms from changing their own processes -- directly -- and using lean principles to improve their work.

D. Mark Jackson

Creativity and Failure

In the last several weeks, I encountered several instances of the same theme:  Creativity Requires Failure. In a recent lecture, legal writing consultant Gary Kinder argued that creative writing is only possible when you set aside your left brain's logical and structured tendencies and allow your right brain to expound. If the left brain jumps in to criticize, it interrupts the flow of ideas. Only through free flowing ideas can one produce greatness.

In a TED presentation, creativity expert Sir Ken Robinson contends creativity can only develop if humans are allowed to regularly fail. (video below) Our educational system, he argues, stymies creative development by judging children's abilities by their performance in math and science, rather than art, music, and dance. Robinson believes the problems facing humanity are so profound as to be solvable only though the next generation's creativity, which we are tasked with nurturing today.

Legal work, of course, allows for very few errors. Same for automobile manufacturing. Hence lawyers' attention to detail and the "error proofing" techniques of automobile manufacturers. For example, Toyota uses many techniques to ensure workers exactingly follow standard workflow.

On the other hand, creativity is essential to good lawyering. Robinson defines creativity as original thoughts that add value. At our best, that's what lawyers do.

Is there a way to ensure error-free work, as well as highly creative-high value work? One solution is to encourage risk taking and boundary stretching within the safety of the office, but apply quality measures before allowing anything to leave the office, either to the client or the court.

D. Mark Jackson

Welcome

Manufacturers have been studying and implementing some form of the Toyota Production System and lean for over a hundred years. For the most part, however, law practitioners have never heard of it, let alone used it in their work. Why? One reason may be the law's focus on tradition. It is a conservative and slow moving field, by nature. Another reason may be the billable hour, which creates little incentive (some would even say disincentive) to eliminate waste.

But those days are over. The corporate world's efforts to eliminate waste from their supply chain is finally reaching law firms. The global economy demands efficient service. And to the extent we can, we lawyers ought to deliver.

Yet, as far as I could find, this is the first mention in any legal publication of lean concepts and law practice (more about this interview later). When I've mentioned to manufacturing clients that I use lean concepts in my practice, the reaction has been along the lines: "You know what lean is?" And many law firms seem to epitomize the opposite of lean -- lots of waste, and little respect for people.

So I believe the time has come for this blog, an idea that has been a percolating in my mind for about a year. I hope you enjoy reading and commenting.

D. Mark Jackson