ABSTRACT: Medicine increasingly is driven by empircal best practices. Should law firm knowledge management develop best practices? This article summarizes a discussion that I moderated on the topic at February 2007 large law firm knowledge management meeting.
Many markets and professions develop “best practices,” which define how to do similar tasks in demonstrably superior ways. For example, well-designed clinical studies test the how to treat a disease and establish the best practice. “Evidence based medicine” is changing how (better) doctors practice.
Should knowledge managers care about best practices for lawyers? A core definition of KM is knowledge re-use. A “best practice” represents the most highly refined form of KM: tested, vetted, documented, and proceduralized know-how. Unlike most KM resources, a best practice is not simply a resource that may offer help — it is the way to solve a problem. Arguably, best practices represent KM nirvana: the most valuable form of crystallized experience.
At a February 2007 large law firm knowledge management meeting, a panel of four KM professionals and the audience discussed best practices and the connection to KM. What follows is a report on the discussion at that meeting. The bottom line is that most large law firms have, at best, only a few “best practices.”
One attending firm, however, has several substantive best practices. It has coherent sets of model documents and guidelines for using them. The firm does not need formal mechanisms to enforce using them. New lawyers “beg for guidance” and are happy to use the defined practices. So they quickly buy-in to a culture that hews to the defined best practices, a culture that frowns on those who deviate.
The few other pockets of best practices are procedural, not substantive. Examples include a process to review draft 10k submissions, how to conduct e-discovery, and guidelines for writing formal opinions. The common motivation is risk avoidance. E-discovery is complex, prone to error, and requires more than just legal know-how. After the $1.6B judgment against Morgan Stanley stemming from e-discovery problems and negative publicity for the AmLaw 100 firm involved, firms rightfully perceive EDD as a risk. Similarly, an incorrect formal opinion or an inaccurate 10k can lead to malpractice claims.
So how did the few best practices cited get to be “best?” In the examples here, best was determined by an internal study of what worked and what didn’t. Unlike in medicine, there was no quantitative analysis, no controlled study. And unlike in many other markets, there is no reference to other companies via benchmarking.
Yet a market-based, benchmarking driven approach is possible. One panelist cited three examples of market-wide legal best practices:
- The International Swaps and Derivatives Association has developed standard documents for the eponymous financial transactions. (Interestingly, several large UK law firms have developed document assembly systems for these transactions, based on ISDA forms.)
- The Loan Syndication and Trading Association has developed standard documents as well, which it sells from its web site.
- The National Venture Capital Association offers “A “template” set  of model legal documents for venture capital investments put together by a group of leading venture capital attorneys.”
If doctors and deal-makers develop best practices, why don’t lawyers? Some participants suggested that, at least on the deal side, lawyers implicitly use best practices: whatever was done on the last deal represents the current best practice. Furthermore, the latest documents from about a dozen large NYC law firms arguably define the current best US practice and cause them to evolve.
The audience debated this “whatever is, is right” view. One person amusingly pointed out the difference between “last” and “best” practice with a story, perhaps true, perhaps apocryphal. A long time ago, bridge builders re-used plans from the last bridge. If the new bridge had to be a bit bigger, well then just make all the parts that much bigger. That worked until bridges started collapsing!
Implicit in the “my last deal is the best practice” view is that every deal (or big litigation) is different and there is no way that it can be studied, analyzed, or improved. Many business people reject such reasoning. Perhaps the more realistic reason for the lack of legal best practices is what several called the “artiste” approach of lawyers: “I am an artist, not an engineer, scientist, or other drone.” If the lawyer-as-artiste view is right, then critics who call lawyers the last bastion of medieval guilds are wrong: the guilds shared and compared their know-how, which may be more than lawyers do.
Lest we despair, professional development comes to the rescue. Quite a few argued that new lawyer training and CLE programs encapsulate best practices. Left for another day, however, was the discussion of who develops the materials, how and whether PD materials reflect more than just the latest deal or litigation filing, and whether trainees then follow what they learn.
The practical advice here for KM professionals seems to be that you should not bother with best practices absent special circumstances such as a fixed price practice or strong practice group culture. Instead, consider the metaphor the audience evolved: The world is a dark and dangerous place; swamps are everywhere and dry land precious. KM professionals merely help keep the lawyers on dry land by providing some guideposts.