On Email Disclaimers

On whether to create email disclaimers that have:

no qualms about indulging in the more obnoxious trademarks of legalese, including but not limited to (i) the phrase “including but not limited to”, (ii) the use of “said” as an adjective, (iii) re-naming conventions that have little to no basis in vernacular English and, regardless, never actually recur (hereinafter referred to as “the 1980 Atlanta Falcons”), (iv) redundant, tedious, and superfluous repetition of synonymous terms . . .

The whole thing is hilarious and spot on.  I think I'm going to remove said disclaimer right now.

(Via Ben Brooks)

John Henry Reviews Documents

Integreon has an interesting discussion on a recent study pitting humans against machines.  No this isn't about supercomputers and Jeopardy! It's something much practical:

The underlying study by a trio of recognized experts in cognitive science, information management, and e-discovery, Herb Roitblat, Anne Kershaw, and Patrick Oot, is described in detail in their journal article, Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, published in the January 2010 issue of theJournal of the American Society for Information Science and Technology [link available at the Posse List].

It raises - and partially answers - the important question whether we are approaching a breakthrough in terms of the capability of automated review tools to render ‘consistent’ and ‘correct’ decisions, as measured against an existing standard, while classifying documents in a legal discovery context. The study pitted two teams of contract attorneys against two commercial electronic discovery applications to review a limited set - 5,000 documents - culled from a collection of 1.6 million documents. The larger collection had been reviewed two years earlier by attorney teams in connection with a Second Request relating to Verizon’s acquisition of MCI. The authors’ hypothesis was that “the rate of agreement between two independent [teams of] reviewers of the same documents will be equal to or less than the agreement between a computer-aided system and the original review.”

The study set out to test whether an automated review tool would show similar levels of agreement with classifications made by the original reviewers as did the two contract teams. The two re-review teams agreed with the original review on about 75% of document classification decisions; the commercial automated applications fared slightly better.

There a number of obvious (and not so obvious) flaws in the study, which the Integreon post nicely lays out. My first reaction is that "rate of agreement" is a lousy benchmark, since the measure conflates too many significant variables.

I'm also fascinated by this quest for the document review holy grail: total automation. Contrary to lean principles, these managers seek to automate the process without fully understanding how it works manually. Just exactly how and why do review document reviewers make different calls?

And what about a hybrid approach?

A potential hybrid model would have senior attorneys review representative sets of documents and the tool analyze features of the reviewed documents to identify and auto-tag “like” documents in the larger collection. As the review proceeded, the tool would ‘percolate’ to the review team’s attention subsets of documents from the collection dissimilar from those already reviewed. Based on the reviewers’ decisions as to these documents, the tool continues to apply tags to more of the collection.

The attraction of this approach is two-fold: human attorneys are still making initial determinations but the application magnifies the effect of their determinations by propagating decisions to similar documents throughout the larger collection. It has been suggested that, in the proper context, this approach would permit a single attorney to “review” a vast collection of documents in several hours. A test of that claim is warranted and, if the premise were proved, it would be impressive and could directly influence the increased use of automation in review, even if, for all the reasons stated above, wide adoption of such processes would take a while.

As a lawyer who likes to tightly control processes, I'll admit the attraction of this approach. As one moves down the hierarchy in any litigation team, deep knowledge of the client and issues is inevitable lost. If technology can leverage the knowledge of the most engaged, the better the result, theoretically.

(cross-posted at California E-Discovery Law)

Does Automation Diminish Our Basic Skills?

 Photo Credit: Rui Caldeira

Photo Credit: Rui Caldeira

Pilot Patrick Smith has another interesting article on cockpit automation and flight safety, something this blog has considered before.

Has automation reduced pilots' basic "stick and rudder" skills?  His answer:  "Probably, yes."

But the more interesting discussion is how automation has grafted a new technological skill set onto basic flying:

[A]utomation is merely a tool. You still need to tell the airplane what to do, when to do it, and how to do it. There are, for example, no fewer than six different ways that I can program in a simple climb or descent on my 757, depending on preference or circumstances. The automation is not flying the plane. The pilots are flying the plane through this automation.

A fitting metaphor for other knowledge work.  Technology hasn't changed what we do, as much as changed how we interface with machines to get it done.  The tools have changed.  The work, fundamentally, has not.

Of course, interfaces are complicated and can even add to our overall workload:

If you ask me, the modern cockpit hasn't sapped away a pilot's skills so much as overloaded and overburdened them, in rare instances leading to a dangerous loss of situational awareness.

A danger for all of us.  Alarms, notifications, badges, and our ever-expanding landscape of electronic inputs, distract us from real work.  Whether that's landing a plane, or delivering a project.

This has given birth to a meta-skill: the ability to sift, filter, and organize the elements of our work.  Our first challenge, then, is to maintain situational awareness in a complicated world.

Update:  Interesting post on maintaining situational awareness in e-discovery.

Psychological Techniques For Boosting Creativity

Looking for ways to increase creativity, methods grounded in actual research?  Take a look at this two part series on psychological techniques to boost creativity.  One of my favorites:

People often jump to answers too quickly before they've really thought about the question. Research suggests that spending time re-conceptualising the problem is beneficial.

Mumford et al. (1994) found that experimental participants produced higher quality ideas when forced to re-conceive the problem in different ways before trying to solve it. Similarly a classic study of artists found that those focused on discovery at the problem-formulation stage produced better art (Csikszentmihalyi & Getzels, 1971).

◊ For insight: forget the solution for now, concentrate on the problem. Are you asking the right question?

So many knowledge workers -- lawyers in particular  -- rush to solve problems, because that's what they're good at. But stopping to thoroughly examine the problem not only serves to identify the real issues at stake.  According to these studies, it also helps apparently stimulates creative thinking.

(via Kotte)

Over-processing: Too Much Of A Good Thing

Bruce MacEwen at Adam Smith, Esq. has an interesting post on how the views on quality held by corporate in-house legal counsel diverge from outside counsel. Referencing McKinsey, he divides quality into three segments and explains how he thinks corporate America views them:
  • Good enough: Sufficient for almost all purposes almost all the time.
  • Excellent: Occasionally needed when germane to reputation, marketplace perception, or positioning.
  • Superb: Very rarely required, perhaps only when genuine organizational threats are in play.

He contrasts this with the perspective of outside legal counsel:

  • Superb: Why you come to our firm, what we do, and who I am. (Don't for a second underestimate that third element; it's why you get up in the morning and how you hold your head high.)
  • Excellent: When we try to execute a representation with some degree of sensitivity to costs, based on a longstanding relationship.
  • Good enough: Who do you think we are? You've come to the wrong place.

Assuming outside counsel does the work at a "Good enough" level, Bruce poses the question: "who's to blame-your firm or the client-for the fact that merely sufficient legal advice has come back to bite?"

Good question. And one I'm not prepared to answer.

But let me add a comment from a Lean perspective. The problem with outside legal counsel's view is the willingness to engage in over-processing, one of the seven traditional forms of waste (muda). Over-processing is doing more work, or higher quality work, than is desired by the customer, or using tools that are more expensive or precise than needed.

Outside counsel sees the high quality work as an unqualified good thing (who would want lesser quality?) In-house counsel sees the work as "wasting" their finite budget for legal services. The company wanted a Corolla. Its attorney just built a fully loaded Lexis LS600hl.

The key here is open communication between the client and outside counsel.The client should be clear about what it needs. Counsel should be clear about what it will deliver and at what price. Also, counsel needs to explain the risks of opting for work of lesser quality. And to the extent possible, the client needs to sign off on any such risk.

We also should be careful to distinguish between the quality of work product and the quality of representation. Work product almost always should be high quality. It's the amount or type of work product that should vary depending on the client's needs. For example, a legal brief should be very well written -- no matter what. But whether the brief should be filed should be considered at the outset.

Given the current economic climate, there's sure to be a lot more discussion about the appropriate level of quality, for legal services and virtually everything else we have to pay for.

Does Technology Make You Complacent?

Is autopilot dangerous? The National Transportation Safety Board is holding a three-day conference in Washington, D.C. to discuss pilot and air traffic controller professionalism, including whether automation makes pilots complacent.  The New York Times reports:

Automation is generally considered a positive development in aviation safety because it reduces pilot workload and eliminates errors in calculation and navigation. “The introduction of automation did good things,” said Key Dismukes, chief scientist for aerospace human factors at NASA. But it changed the essential nature of the pilot’s role in the cockpit. “Now the pilot is a manager, which is good, and a monitor, which is not so good.”

...

Finding the balance between too much technology and too little is crucial, according to William B. Rouse, an engineering and computing professor at the Georgia Institute of Technology. “Complacency is an issue, but designing the interaction between human and technical so the human has the right level of judgment when you need them is a design task in itself,” Mr. Rouse said. “When the person has no role in the task, there’s a much greater risk of complacency.”

Law offices certainly don't run themselves. But some functions are now automated, like document assembly, which utilizes software, templates, and the organization's knowledge base. There's no dispute this is a good development, reducing the time and expense of legal work and producing higher quality and more consistent work product.

Yet the danger of complacency exists. The technology makes it easy to produce good looking work product without dwelling on the details of the process. Professionals can be lulled into clicking buttons rather than thinking carefully.  They can overlook special circumstances or reasons for deviating from standard work.

Good countermeasures might include checklists to ensure people think through the issues. There should be a good review process to ensure final quality. And most importantly, as mentioned in the article, humans must maintain a role in the task -- important work shouldn't be completely automated.

Lean bonus: Discussing the Northwest Airlines flight that overshot its destination, the article quotes Chesley B. Sullenberger III, the captain who famously landed the US Airways plane in the Hudson last summer, reminding us to look for root causes of problems rather than reflexively blaming technology:

“Something in the system allowed these well-trained, experienced, well-meaning, well-intentioned pilots not to notice where they were, and we need to find out what the root causes are,” he said. “Simply to blame individual practitioners is wrong and it doesn’t solve the underlying issues or prevent it from happening.”

Also see this post by Mark Graban on aviation, standardized work, and automation.

Is Legal Project Management Going Mainstream?

Jordon Furlong charts recent press on legal project management and thinks it's about to burst on center stage.  He writes:

The day of the haphazard lawyer, who pursues a solution by intuition, experience and the loosest possible timetable, is drawing to a close. In his place is emerging the process-driven lawyer: disciplined, procedural and systematic, who understands that madness lies not in method, but in its absence. Most of us don’t like that idea. We’d much prefer to maintain the image of the ingenious lawyer who triumphs by intellect rather than by procedural discipline. It confirms our belief in our innate intellectual advantage over non-lawyer competitors — and, frankly, it makes us feel better about ourselves.

....

The truth is, much of what lawyers do can be charted, diagrammed and proceduralized, and both the quality and the cost will be better for it. But that doesn’t mean there’s no room for smart, creative lawyers in the future. For one thing, systems don’t need to be straightforward and monotonous. More often than not, especially in the law, they’re complex and challenging, and they can easily be made elegant, precise, finely tuned, honed to a keen edge — the imagery of swordsmanship is intentional. And even within systems, a lawyer’s unique judgment, analysis and creativity can emerge.

I think this right and the whole post is worth reading.  And as I've written before, good processes and standardized work facilitate, rather than hinder, creative thinking.

Why Process Improvement Should Matter To All Lawyers

One thing is now clear: for serial litigants, developing efficient processes for handling e-discovery is critical. Joan Goodchild at Computerworld sings a common refrain heard at the The Sedona Conference Institute e-discovery conference I attended last week:

NBC Universal is one of the largest media and entertainment companies in the world. Chief Information Security Officer Jonathan Chow and his team manage information security for several business lines within NBCU, including its broadcast and cable television to film production, online ventures and its two theme parks in Hollywood, California and Orlando, Florida. Among one of the biggest challenges in the last few years has been the incredible explosion in demand for e-discovery services, according to Chow.

Since different legal teams handle the needs of each line of business, the workflows associated with managing electronic discovery vary as well, adding another layer of complexity. And because of the growing number of cases, and increases in both the amount of electronically stored information and hours spent supporting the process, demand for e-discovery services has increased 30 to 50 percent annually. The costs were spiraling out of control and this sent Chow looking for a way to manage the process internally.

Chow . . . tackled the costly and time-consuming process and turned it into a cost-effective and more efficient system that has seen a 40-45 percent gain efficiency since its implementation.

I spoke with several in-house teams who've done a remarkable job developing standardized workflow for handling e-discovery. In doing this, they've discovered how wasteful the processes were when handled by outside counsel.

But the lesson isn't that in-house teams are necessarily more cost effective than outside lawyers. Outside counsel can do this too. The lesson is that process matters. Efficient processes allow in-house teams to save money for their companies. And outside counsel can give their clients the service they deserve.

Race to Nowhere: How Are Tomorrow's Lawyers Being Educated?

Several weeks ago, I saw Race to Nowhere, a film screening to small audiences in the San Francisco Bay area. This movie documents the incredible demands we place on elementary and high school children. Many of these kids spend over seven hours a day at school, followed by two or more hours doing activities such as sports, music, or clubs. They visit with tutors. When they return home, they have several hours of homework. This over-scheduling is compounded by an incredible amount of time spent consuming media.

Despite these time commitments, children aren't learning more. Educators must increasingly prepare children for standardized tests in order to comply with state and federal mandates, lest they incur penalties and further budget cuts. Teachers spend less time teaching critical thinking skills, problem solving, and instilling a love of learning. Those passionate about teaching lose interest and burn out. Students cram material for the tests, then purge it from memory.

As a result, kids are a mess. They're stress out and sleep-deprived. Boys get frustrated, begin to dislike school and learning, and alarming numbers drop out.  Girls get depressed, and some develop eating disorders and resort to suicide.

And to what end? While U.S. elementary students perform slightly better on tests than those in other countries, this advantage disappears by high school. Tellingly, even the most academically selective universities - think Harvard, Yale, Stanford -- must remediate half their incoming students. That is, fifty percent of entering freshman at our best colleges lack basic reading, writing, and math skills.

How does this affect the legal profession?

Lawyer Sara Bennett, featured in the film, is co-author of The Case Against Homework: How Homework is Hurting Our Children and What We Can Do About It. She left the legal profession partly out of frustration that incoming members of the bar couldn't do the work without extraordinary levels of handholding.  She argues we are creating generations of adults lacking critical thinking skills and the ability to work independently.  Today's adults are still "studying for the test."

Bennett invites us to consider what might have happened to a kid like David Boies today and references this excerpt from his biography.

And then there's this depressing vinette from Ralph Losey.

If our educational system is as infirm as reported, what type of lawyers will lead in twenty years? Will we be equipped to deal with the future's increasingly complex problems.

I've written about the importance of nuturing creativity in young people so that we can solve humanity's emerging problems. We don't seem to be on track.

Our professional institutions also reinforce the problems in our educational system. Law school admissions still fixate on standardized test scores -- despite being a poor measure of lawyerly ability -- draining the pool of legal talent. Associates are "over-scheduled" with billable hour requirements. The work frequently lacks the depth and intellectual content that promotes growth and satisfaction. Attrition rates were high (at least until the recent economic downturn).

What's the lesson here? Recognize that test scores are not the full measure of a person. Acknowledge the human limits on how long we can work, especially when humans are still growing and developing. Provide nourishment and allow time for rejuvenation. Understand that physical and mental health are prerequisites to academic and professional excellence.

And lawyers, and indeed all professionals, should remember their fundamental responsibility: to resolve society's most difficult problems though -- yes, hard work -- but also though creativity, compassion, and other unquantifiable traits that make us human.

The Future of Legal Education: Online?

Ralph Losey persuasively argues that online education will replace bricks-and-mortor education, including law school, as the dominant form. The major advantage of online courses, he claims, is that they are asynchronous, meaning:

A student can logon to study at the time when they are most alert and receptive. They can do so in an environment of their choosing, one that they have found to be most conducive for learning. They may choose to study alone, or in a group.  Some may learn best in a crowded coffee-shop. Others may prefer a quiet room by themselves. For some the preferred time to learn may be in the morning. For others it may be late at night. Online learning can happen anywhere and anytime.

Traditional institutions that ignore this trend -- even our most venerable top universities -- risk being left behind.

This resonates with me. I studied for the California Bar exam while living in Virginia, entitling me to use the study course's audio tapes, rather than having to attend the live lectures.

Granted, it was the bar exam, but it was one of the most intense learning experiences in my life. Since I devoted my days entirely to bar preparation, I could plan all my activities around my personal preferences and natural rhythms. For me, this meant taking practice tests in the morning, studying outlines in the morning and early afternoon, and listening to the lectures in the late afternoon when I didn't have the energy to do much else. I could listen lying down on the sofa when particularly exhausted. I could take breaks at will. I could clear my head with a run. This freedom allowed me to absorb a huge amount of material in the most personally effective way.

This wouldn't work for everyone. Some people need that mandatory lecture in order get on task in the morning. One can't really do class projects and study groups without personal interaction. People learn differently through dialogue. And how do you do the Socratic method in a WebEx session?

But let's leave aside whether this education is better, in the sense of being more convenient, cost effective, and otherwise efficient.  Will online education make for better lawyers?  Or will something essential be lost in translation?

D. Mark Jackson

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