Best Practices Questioned
I periodically blog on the topic of best practices so was intrigued to read “The Quest for the Best” in the Legal Times (11/15/04, subscription required). In it, management consultant Rees Morrison argues that the quest for best practices is akin to the search for the Holy Grail. Morrison is one of the most astute observers and analysts of the legal market, so it is with some trepidation that I take issue with his conclusion.
Morrison writes that “[l]aw department manager crave best practices – otherwise known as the accepted optimal management strategies… Sadly, the cravings go unmet.” He argues that “law department management is too complicated for any particular practice, removed from is complicated history and context, to stand above the rest.”
In support of this thesis, Morrison turns to philosophy, economics, psychology, and sociology. Some of the key points he makes (quoting from his captions) include:
- Induction can’t prove that a practice is best.
- We can’t pin down cause and effect.
- ‘Best’ can’t be agreed upon.
- All practices exact trade-offs.
- Our decision making is flawed.
- Group think quells inquiry into best practices.
For these and other well-argued reasons, Morrison concludes that “[b]est practices are illusory” and general counsels should evaluate practices as “contenders – not crowned champions.”
Though I cannot disagree with Morrison’s individual points, I think he lets general counsels off the hook too easily. Challenges exist to be sure, but GCs must constantly evaluate and analyze how they and their outside counsel practice. At any given point in time, they should consciously choose methods and approaches that are best, even if only backed by anecdotal evidence.
At the risk of relying on inductive reasoning, I will cite two examples of fairly well-accepted best practices:
- E-mail. In 1989, when I arrived at Wilmer Cutler, almost every lawyer had a PC and the firm was completely dependent on e-mail for its daily work (practice and admin). Though it was patently obvious that e-mail was demonstrably efficient, much of the legal market was only dragged to it kicking and screaming by business people and clients. Had lawyers – at firms or departments – actually analyzed how they worked, it’s hard to see how they could have concluded not to use e-mail, if not in 1990, then certainly by 1993 or 1994. Yet adoption by lawyers did not occur until well after the Internet took hold around 1996.
- Document Databases in Litigation. Most litigation support professionals and many litigators understand that investing in a database early in a case to manage discovery documents is almost always a cost-effective decision. Lawyers who do not cause databases to be built upfront often incur huge costs in lawyer review or vendor overtime to make up for not having a database at the right time.
I have intentionally chosen two examples that should be widely understood to illustrate the point that seemingly obvious best practices take a long time to adopt or are still ignored. I believe that there are many areas of law practice where attention to the actual means of practice can identify better, if not best practices. In future posts, I will discuss my theory for why this is true – and I do not intend to let lawyers off the hook.
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