In Support of Best Practices
My prior post discussed a recent article suggesting that the search for best practices may be fruitless. I believe that the problem is less in defining best practices and more in the mindset of lawyers.
[Since my prior post, the article, The Quest for the Best Law Department Management Practices, is now available online without registration at Corporate Counsel magazine.]
The quest for best practices is not so much to define an eternal best practice as it is to examine systematically how law is practiced and, for time-consuming or costly tasks, to decide consciously how they are conducted and managed. The goal is to identify what works and what does not and what is efficient and what is not.
Achieving this goal requires collecting and quantitatively analyzing data, a task with which most lawyers have little experience or skill. It also requires the discipline to enforce standards. Many lawyers have no problem enforcing their own standard but cannot abide following a standard set by someone else.
I am not sure that I can definitively prove this hypothesis, but several observations support it:
- Relatively few lawyers are skilled in using spreadsheets, an essential tool to analyze data.
- It does not appear that many law departments analyze e-billing data to determine cost trends over time or across firms. To date, e-billing seems relegated to the auditing bills for minutiae rather than focusing on how much work should really cost and how it should be conducted.
- When inhouse counsel say they are managing matters, it seems to me they talk much more about the substantive aspects of cases and strategy than how the case is run.
- The discipline to enforce standards in law departments seems lacking. I have heard several stories of failed matter management systems. The problem was not technology; rather, it was that no one entered data or lawyers were unwilling to change the way they worked. Separately, I recently heard in a Webinar about a law department that retained a bevy of consultants to set up a collaborative system to share work product among outside counsel. Unsaid was that this law department did something very similar about a decade ago. Both stories suggest a lack of will to enforce standards.
I would welcome being proven wrong about this hypothesis. But I believe that weak empirical skills and lack of will to enforce changes in how lawyers work better explain the failure to identify and establish best practices than any other hypothesis.
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