Here’s a thought experiment designed to think about knowledge management, open source law, and the process of law practice. The goal is to identify one way lawyers might save time and money and deliver more value to clients. 

In a thought experiment, we can throw away constraints. So assume that confidentiality, privilege, and competitive issues matter not, that law departments contributed a significant portion of work product – generated internally or by outside counsel – to a common pool (“The Corpus”), and that lawyers had software that allowed easy and effective searches of the Corpus.

The experiment’s goal is to to learn if lawyer efficiency would increase with access to the Corpus. The metric is the time lawyers would save (the “Savings”) versus not having access to The Corpus. What are some possible findings?

If the Savings were quite low (say under 15%) we might conclude that most of what lawyers do is “one off”. So we might agitate to simplify the world, trying to figure out whether the complexity stems from clients who demand more than they really need, lawyers who do more than need to, or from laws that are too complex.

If the Savings were quite high (say more than 65%), we might conclude that corporate counsel should find a way to share more. Or would it? We would need to answer another question first: just how big a Corpus is necessary to achieve the Savings? Large law departments already have, at least in our thought experiment, easy access to a big corpus of their own documents. It may turn out that this subset of the Corpus provides most of the benefit (the 80-20 rule). If true, then we would want to invest more in KM. If not true, then we might have the impetus to find ways to share more, to create a bigger body of open source law. It might then pay to consider ways to relax some of the practical constraints such as privilege and confidentiality. As for mechanisms for sharing, several possibilities already come to mind: ACC, General Counsel Roundtable, or Legal OnRamp.

If the Savings were somewhere in the middle (say 20% to 60%), we might decide to re-run the experiment on less than all of law. For example, we could look at just asset purchases or just employment agreements? Looking at “smaller slices” might identify areas where more sharing would be hugely beneficial because few organizations individually achieve critical substantive mass or because everyone does it but there is too much variation not driven by business requirements. The outcome might be focused efforts to share particular types of documents.

Conducting this experiment, I’ll state one definite conclusion: we lack sufficient data to begin to estimate the Savings. And this is a problem. In the Value Challenge age, the legal market needs a better sense of how its processes work, what really drives work effort, and how to save time.

Some end notes:
– You can learn more about thought experiments at Wikipedia.
– I was prompted to think about open source law by spending more time with Kiiac, which has tools to analyze collections of transactional documents, and by reading about Series Seed a website by a Fenwick & West lawyer that offers open source law documents for start-ups.
– I have previously written about open source law; not to be confused with the law of open source code.
– I have focused, implicitly, on business to business law (Big Law). Open Source Law raises an equally interesting set of questions for consumer law.
– I welcome comments on the thought experiment. Better yet, I welcome someone to re-run the thought experiment and see if they reach different outcomes.

Update (April 20, 2010): Fellow blogger and contract drafting expert Ken Adams has an excellent commentary on the above at his post Open Source Law and Contract Drafting—A Dead Skunk in the Middle of the Road. Plus see the one comment as of this update. I’ll see if there is more reaction before weighing in again.

Update (April 21, 2010): Fellow blogger, KMer, and contract analysis expert Kingsley Martin of Kiiac has chimed in on this discussion at Open Source—A Dose of Tomato Juice. Ken’s thesis is that a lot of language in Corpus is bad, so don’t copy; Kingsley’s is that the Corpus can offer important insight into what business terms are important.

Update (April 21, 2010): Ken Adams has updated Open Source Law and Contract Drafting—A Dead Skunk in the Middle of the Road to comment on Kingsley’s post. [Hmmm… what’s the the best platform for this type of dialogue? I’m not persuaded comments to blog is best approach.]