A post by David Hobbie about an International Legal Technology Association (ILTA) session on Aug. 22, 2007, describes some of the knowledge management initiatives of Cisco’s Law Department. Cisco has 130 lawyers in the Silicon Valley and 230 total legal staff in 72 countries. They use DealBuilder (See my post of April 18, 2007: the software’s use by three law firms; Feb. 6, 2007: Microsoft and Reuters applications; and June 20, 2007: Cisco’s applications.) and have customized a contract management system. That system has guides for 26 types of contracts.

To encourage collaboration and knowledge sharing among its far-flung lawyers, the Department created a “Legal Exchange Collaborative" where users can post questions and send e-mails to one or more groups of lawyers. The system handles 20-to-50 questions per month. Its downside is that the e-mails contain only a hyperlink, not the question or the subject, so people who are traveling cannot make full use of it. To address this drawback, the department is considering creating a wiki that can disseminate more of the information its lawyers need (See my post of Feb. 9, 2008: references to six posts on legal wikis.).

Alternate reality games (ARGs) are immersive, massively multiplayer experiences that unfold for the participants over days, weeks or months (See my post of Nov. 18, 2007: online gaming worlds as a way to train in-house counsel.). As described in the Harv. Bus. Rev., Vol. 86, at 29, an ARG designer, knows as a “puppet master,” distributes information and material, such as to the lawyers of a law department at an offsite. The information might pertain to the department’s use of outside counsel over the past several years; the goal of the ARG might be to think through the consequences of drastically reducing the number of law firms retained by the department.

Before the offsite and during it the lawyers would “use wikis, social networking sites, chat rooms, and blogs to analyze clues, debate interpretations, devise mission strategies, predict game events, and ultimately build a common narrative.” In other words, through the life-like simulation they would learn.

As extolled by the author, Jane McGonigal, collaboration in such an effort teaches 10 collective-intelligence competencies. "These include cooperation radar, accurately identifying the very best collaborators for a given task, and protovation, the ability to rapidly prototype test experimental solutions.” Learn more about the remaining eight competencies at the website of McGonigal and why ARGs will supplant some meetings and planning processes.

Joe Bookman, the founder of PinHawk, offers an intriguing prediction in Law Tech. News, Feb. 2008, at 30. Bookman foresees that over the next year or so law-department matter-management systems will start to integrate with internet monitoring software. For example, when an in-house lawyer clicks on a matter, the monitoring software will automatically bring up any recent online references to that matter. Or, when the lawyer clicks on the name of a law firm retained by the law department, the monitoring software will display comments about the firm from the blogosphere or other online sources (See my post of on social networks.).

Such professional mashups (See my post of Nov. 24, 2007: artiblogs.), combining law-department information and supplementary information online, has no end of applications.

My friend Paul Lippe, head of Legal OnRamp, makes an interesting point. It is not enough for a general counsel to know the legal ins and outs of a situation. Nor is it enough to also know the situation’s business ramifications. What the general counsel must also know is what other companies that face a similar situation are doing, especially companies where a Board member sits on the other company’s Board of Directors.

That shared director will want to know why the general counsel’s position differs from the other company’s, if it does. Professional networks enable general counsel to reach out to peers, and they can help you when a board member looks over your shoulder with independent legal knowledge about the issues confronting you.

Forty attorneys took part in the most recent Association of Corporate Counsel's (ACC) Executive Leadership Institute (ELI). Lectures by Stephen R. Chitwood, director of George Washington University's Center for Law Practice Strategy and Management, focused on "executive leadership and management, motivation, strategic thinking, planning, analysis, and management, leadership style; and more.”

In the issue of the ACC Docket, Vol. 26, Jan./Feb. 2008, that reported on the ELI (at 16) there is a two-page ad (at 32-3) for Boston University's Executive Leadership Center's Mini MBA for in-house counsel. This program, cosponsored by ACC, "will provide you with the broad based understanding of corporate finance, accounting, risk analysis, management, and strategy you need to excel."

Unlike the day-and-a-half conferences that one usually sees, these two programs are longer and more detailed (See my posts of Aug. 19, 2007 #4 for a sample of conferences that targeted lawyers in corporations.).

The ALSP Update, Vol. 1, Dec. 2007 at 9, the monthly newsletter of the Association of Litigation Support Professionals(See my post of Jan. 27, 2008 on ALSP.), talks about the Yahoo Groups LitSupport listserv. A listserv is a way for people to post messages in threaded discussions and read others’ messages by topic.

This particular listserv has been running for more than a decade and currently has over 7,000 subscribers. It has amassed some 35,000 messages. Related to the substantive listserv is a LitSupport-Announce list where job openings are posted.

I mention this resource because it may be useful for law department lawyers and staff who have some responsibility for e-discovery and litigation support (See my post of Nov. 13, 2007 on internal e-discovery groups.). Listservs are yet another way those who care about management issues in law departments can keep abreast of the latest thinking and meet others who share their interests.

Typically we think of knowledge management as the collection of documents and other material – guidelines, checklists, alternative clauses – that someone might find helpful (See my post of March 5, 2005 on altruistic information sharing.). Another value of knowledge management repositories like these is discussed in Sloan Mgt. Rev., Vol. 49, Winter 2008 at 16. The article makes the point that not only does the material itself have value, but also that it points to a person who knows about the documents and the practice area.

Indeed, the human connection may be even more valuable. In a law department, knowing whom to call about a problem may be much more useful than a cold and sterile document. Furthermore, lawyers will not feel as compelled to write erudite documents or spend time polishing their submissions if they know that what they contribute is a pointer to them (See my posts of March 23, 2007 on office proximity and knowledge transfer; March 23, 2006 on business intelligence compared to knowledge management; July 21, 2005 on knowledge brokering; Feb. 25, 2007 on knowledge preservation through video recording; and Nov. 6, 2006 on organizational network analysis.).

InsideCounsel, Jan. 2008 at 14, highlights the blog of the National Arbitration Forum, which has been online since November 2004 (See my posts of Dec. 9, 2005 on ADR-favoring companies; and Feb. 7, 2007 on the cottage industry of arbitrators.). I wondered what else I had written about arbitration.

More than a dozen posts on this blawg have referred to arbitration. A few address arbitration in certain situations (See my posts of July 20, 2005 on employee disputes and ADR; March 29, 2005 on arbitration clauses to reduce litigation costs; Dec. 31, 2006 about online arbitration systems; and Nov. 10, 2007 regarding arbitration of disputes with outside counsel.).

Several posts have criticized arbitration (See my posts of Nov. 17, 2006 on mandatory arbitration; March 7, 2007 on a swing toward mediation over arbitration; May 4, 2007 about expensive international arbitration; and June 19, 2006 on a dissenting view regarding arbitration; May 23, 2007 # 2; and June 11, 2007 #5 on costs.).

Two posts have attacked methodological imperfections in surveys and their interpretation (See my posts of May 8, 2007 with some biased conclusions; and May 27, 2007 on biased data.).

More useful than tracking their time, in-house lawyers might better report on the two-to-four legal issues that recently came to their attention. If every two weeks, for example, every lawyer in a department summarized three to five legal issues they had grappled with during the previous two weeks, each in a two- or three-sentence paragraph, the departmental report would not only keep the general counsel and others abreast of what is being worked on but would also educate everyone. Others might also weigh in on a problem, where before they would not have known about its occurrence.

This variation would serve as a status report (See my posts of Aug. 1, 2006 on reasons to do and not to do status reports; and June 25, 2007 on benefits to clients of status reports.) as well as a building block for knowledge management (See my category, “Knowledge Management.”).

A new book bursts with provocative ideas: David Weinberger, Everything is Miscellaneous: The Power of the New Digital Disorder (Henry Holt 2007). It explores clearly and engagingly how in the coming years, with huge amounts of online information searchable, sortable, rateable, and improvable by users, we will change how we think about information. No longer will we be restricted to first-order organization, where we put the information in a physical structure such as books in the law department’s library. We won’t even be restricted by second-order organization, where we compile information about the first-order information, such as a card catalogue, which have time and space limitations.

Both of these traditional orders of information have physical boundaries and both imply the imposition of authority. For example, first-order knowledge management was a drawer with precedent documents stacked in some kind of arrangement. Second-order knowledge management was an index of those documents. Drawers being in short supply, the first order had physical limitations. Candidate documents for the collection needed to be vetted and approved, so someone had authority over what was included.

The third “order of order” removes the limitations we have previously faced on how to organize information. Digital information confronts no physical limits; indeed, the more of it available, the better the quality and usefulness.

This blog creates third-order information. It has digitized and untethered ideas about how to optimize an internal legal function so that others can find the pieces (the posts) and combine them with other pieces of information in whatever context and for whatever purpose they want. Vestiges of second-order structuring come from the categories I designate – and note that I do not choose multiple categories nor eschew them altogether – and from the chronology of my postings. Still, this blog is a tiny stream feeding into the ocean of unstructured electronic information.

LawyerKM on Nov. 1, 2007 has a post that had me nodding my head in agreement. Your law department could try a blog.

“But some [law] firms are using blogs to communicate internally. We love the idea because (in theory) it can help cut down on mass emails that contain general, non-urgent information. Those periodic case law update emails are a good example. Blogs are also great because (unlike email) they create an automatic, searchable, taggable archive of content. So, if you need to find that blog post about that certain case law update from three months ago, you can search the blog rather than your Outlook folders. You can also bring new members of a department up to speed more quickly – “Check the blog…” The result: a real KM tool - a place to store our collective knowledge for quick and easy retrieval.”

The entry points out that SharePoint offers a blogging component. Other solutions include Wordpress, Movabletype, and Community Server. Law departments! To the ramparts of blogdom!

A previous post described some of the features of the EDGE, the knowledge management platform of DuPont’s legal department (See my post of Jan. 18, 2007.). KM Space, a site hosted by Doug Cornelius, reports some comments by Gabrielle Townsend of DuPont (See my post of June 4, 2007 about other in-house knowledge managers.).

After a Six Sigma study and a calculation of the return on investment, a team of law department employees, led by a knowledge manager, chose Interwoven’s Worksite MP to serve as the platform for the EDGE. Townsend said that the EDGE has 75,000 documents and 1,169 users (458 external and 711 internal). Law firms that DuPont retains have access to the extranet site. “Team rooms” are the locus for knowledge sharing, something like electronic communities of practice. The system has 95 active team rooms “with 5 to 7 team rooms being currently active.”

My skepticism about efforts in law departments to rather disseminate knowledge has been expressed (See my post of March 5, 2005 on altruistic information sharing.). Not withstanding my doubts, I believe firmly that general counsel should try to build their department’s knowledge capital. Here are some of the steps I recommend.

1. Keep an up-to-date list of lawyers and paralegals who have sufficient experience with a certain area of law to be regarded as go-to people in those areas (See my post of March 17, 2006 about internal subject-matter experts (SMEs).).
2. For documents that you use with some frequency, develop templates and standard forms (See my posts of April 5, 2007 on document assembly; and June 12, 2005 about the value when a veteran lawyer prepares form documents.).
3. Require those who attend CLE sessions to distribute their notes and materials (See my post of May 1, 2005 on this practice.).
4. Make full use of a document management system, if one is available. If not available, look into installing one (See my post of Dec. 6, 2007 regarding document management and references cited.).
5. Take advantage of training opportunities provided by your lead law firms (See my post of May 24, 2007 on free offerings by firms.).
6. Require law firms you retain to provide their work product in electronic form (See my post of Aug. 22, 2006 about the futility of law departments collecting work product.).
7. Encourage discussion among your professionals regarding what they are working on (See my posts of Sept. 10, 2005 on practice groups and communities of interest; and June 25, 2007 regarding status reports.).
8. To the extent possible, break down silos of lawyers who do not communicate or share with each other (See my posts of March 22, 2006 on solutions to silos; Jan. 30, 2006 on cross-functional teams at Independence Blue Cross; and March 28, 2006 about PPG’s efforts to break down silos.).
9. Designate “minors” – secondary areas of law to keep up on for the benefit of the entire department – for all of your lawyers and encourage them to keep up on developments in those areas (See my post of Dec. 17, 2006 for “majors” and “minors.”).

An article in the Economist, Aug. 4, 2007 at 48, discusses efforts by accountants to count the value of intangible investments in the business sector. How might law departments quantify and describe numerically their initiatives to increase the availability of knowledge?

The most obvious tally is budget and hours devoted to training and professional development (See my post of May 24, 2007 on law firms providing CLE training.).

Next, expenditures – in time and hours – on knowledge management could be added up, such as for the development of a forms library, licensure of a document management system, client training, development of standard document templates, or document assembly applications.

Law-department intranets and the volume of their content and frequency of use could provide another quantifiable aspect of knowledge management (See my posts of March 1, 2007 #3 about Honeywell’s legal intranet; and March 13, 2007 on mini-intranet sites.).

Departments might include statistics about the experience of their lawyers, reasoning that departments with wise veterans pay more for them than departments pay jejune lawyers, and that investment in savvy should pay off.

High client-satisfaction marks on “knowledge of the law” manifest a law department’s efforts to build and manage knowledge. They also contribute to a quantified picture of knowledge management.

Dollars spent on legal research companies are another component of a knowledge management index (See my posts of Sept. 27, 2005 on legal research expenditures; and Sept. 10, 2005 on indices.).

A general counsel could combine these measures, perhaps weight them according to their value and reliability, and create an index of knowledge management activities.

A footnote in the MIT Sloan Mgt. Rev., Fall 2006 at 89, n.1 set me thinking. “The terms intangible assets or intangibles refer to any nonphysical assets that can produce economic benefits. They cover broad concepts such as intellectual capital, knowledge assets, human capital and organizational capital …” Consider these my reMarx on Engels that occur of Das Capitals.

Intellectual capital in a law departments consists of the intelligence, training, mental discipline and experience of the lawyers and others in the department (See my post of . It’s what’s in people’s heads.

Knowledge assets in a law department include datases, guidelines, form documents, how-to’s, books, precedent files, intranets, and other forms in which knowledge is stored. The forms are tangible but what they capture is intangible. It’s what’s available from people’s desks.

Human capital are personal abilities within law departments that are not intellectual. Humor, multilingual abilities, diversity, emotional intelligence, and doggedness are examples. It’s what humans bring to the table from their backgrounds, personality styles, and genetics.

Organizational capital includes the structure of the law department, its teams and communities of interest, and its reporting lines (See my post of Sept. 10, 2005 on practice groups and communities of interest.).

InsideCounsel, June 2007 at 58, has a meaty article on knowledge management and law departments. This blog has more than 40 posts on various aspects of legal department KM (See my archival category, Knowledge Management.). The article outlines seven steps toward a successful program, one of which is to designate someone to lead or manage it.

The most favored choice to head a KM initiative is a lawyer who believes in the mission. The article makes the point that “leading a KM initiative is not a part-time job, so departments that do this should plan on operating with one less lawyer.”

Cisco, for example, hired a lawyer (Risa Schwartz) who had run her former firm’s knowledge management group. Another example cited by the article is Cadbury Schweppes, who appointed Steven Levine as its director of KM. Jon Olson, a lawyer with Alcatel-Lucent, oversaw the rolling out of his department’s knowledge management program in 2004. Amy Comeau at MetLife had significant responsibilities for knowledge management in that department. DuPont has a legal knowledge manager, Lynn Simpson.

I concur that a successful knowledge management program in a large law department needs a dedicated and empowered lawyer to push the rock uphill.

I recently heard a veteran legal technologist describe what he saw as the three stages in law departments by which knowledge management. I will boldly add one more.

First there were simply tools installed, mostly databases and document repositories. Next firms and departments went beyond technology and content to gather insights and material about processes within specialty areas and practice groups.

According to him, as knowledge management has evolved into the third generation, it has become based on search technology. Tools are available within law departments to enable lawyers and paralegals to find material even though it has not been organized in a database or controlled with a taxonomic structure (See my post of March 5, 2005 on Google desktop; Dec. 10, 2005 on implicit search software; June 30, 2006 about new search tools; Feb. 19, 2006, May 14, 2005, March 6, 2007, and April 4, 2006 #4 about concept-search software; and Feb.25, 2007 about enterprise search capabilities.).

My sense is that the fourth generation of knowledge management in law departments will incorporate the internet and the vast accumulation of material about the practice of law that will be available free and on-line (See my posts of Nov. 15, 2005 about online resources; Jan. 10, 2006 on Google searches; and Jan. 13, 2006.).

Myth 3 – If you have a records retention schedule that applies to paper records, you need to create another schedule for electronic records.

Truth 3 – Not necessarily so. If you have a sound, well researched records retention schedule that covers all of your hardcopy records, you are ahead of the game. The same retention periods that apply to hardcopy apply to digitize information. Under the law, and according to the courts, the generality is that the rules apply to the subject or content, not to the media.

Corollary 3a (to Myth 3) – It is ok to treat e-mail with a single retention period, say 90 days.

Truth 3a – Again, content governs. Just because it is an email, that doesn’t except it from existing rules or make it subject to different rules. If an email and attachment refer to a specific contract or agreement, the retention that you would normally apply to a printed version of that contract or agreement would apply to the electronic version as well. Law departments who try to deal with their email retention problems by instituting a 90 day (or similar) rule are finding out the hard way that this is not acceptable. Users work around it and the courts frown on it.

Myth 4 – If a law department asks its outside counsel for everything in the file, outside counsel doesn’t have to give everything; copies of the hardcopy already given will do.

Truth 4 – If a client asks for everything in its client file, with a few exceptions, outside counsel probably have to give them almost everything, both hardcopy and electronic. Read Sage Realty Corp. v. Proskauer Rose LLP, 689 N.E.2d 879 (1997) for details. Parts of this decision were overturned but the core survived. And this case is front and center with the insurance companies that underwrite law firms. [George Cunningham, Pelli Group, on records management] (See the first two myths in Cunningham’s post of March 23, 2007.).

Myth 1 – The law says that as a lawyer, you have to keep everything forever.

Truth 1 – Not true. If fact, ethics opinions (Michigan Ethics Opinion R-5 (1989)) state that lawyers should have and enforce a records retention schedule because to do otherwise may put their client at risk. If the corporate client gets rid of something but outside counsel keeps a copy and counsel is then subpoenaed as part of an investigation involving the client, counsel (in most cases) will likely be called on to produce.

Myth 2 – Laws specify how long you have to keep client (or case, or matter, or….) files.

Truth 2 – Few laws or regulations say anything at all about how long counsel must keep client files. There is, however, a wealth of occasionally contradictory ethics opinions published by the ABA and many state bar associations on the topic of the lawyer’s responsibilities so far as managing and disposing of client files in concerned [George Cunningham, Pelli Group, on records management (See the second two myths in Cunningham’s post of March 23, 2007.).

It is important and useful for in-house lawyers to understand some of the basic concepts of accounting as they apply to management of a department (See my posts of May 10, 2006 with data from Canadian law departments on the value of this knowledge; and May 7, 2006 on training for financial literacy.). My treatments of the following accounting concepts, skimpy but hopefully not completely wrong, deserves no kudos, but it brings some notions to the fore.

Accrual: How to treat legal costs incurred but not paid by a fiscal-period cutoff date (See my posts of Aug. 24, 2005 and Sept. 17, 2005 #4 about accruals.).

Capitalized and expensed legal spend: How to treat legal expenses incurred as part of a transaction, and therefore amortized over several years, as compared to current spend which is expensed during the fiscal year (See my posts of July 30, 2005 on capitalized legal expenditures; and Nov. 25, 2006 on stock options and how to account for their value.).

Depreciation: How to treat the loss of value over time of a tangible investment (See my posts of Oct. 18, 2006 on whether to include depreciation charges in the law department’s budget; and Dec. 23, 2005 with an example from payment for matter management software.).

Reserves: How to “set aside” amounts that are reasonably likely to be owed (See my posts of March 12, 2005 on a law department that funded its matter management system in return for reductions in reserves; March 12, 2005 and Dec. 10, 2005 on litigation reserves; July 20, 2005 on special-purpose reserve accounts; June 15, 2005 about credit for releasing reserves; and March 13, 2006 on a crude summary of FASB Rule 5.).

To be sure, there are many other accounting concepts that could be important to an in-house lawyer, but compared to these they do not have as much to do with law department management. For example, GAAP (Generally Accepted Accounting Principles) as to which over-arching set of principles see my post of July 20, 2005 on Allen & Overy’s GAAP-compliant disclosure of its financials, and goodwill, which is how to treat some assets acquired in a purchase. Then, too, there are income statements, cash flow statements, debits and credits and a whole profession’s jargon and concepts.

Lucent Technologies’ law department came up with a clever idea: “The department allotted every attorney [I think there were at least 60 at the time] $200 to purchase a book relevant to his or her practice area. Each attorney generated a summary or digest of the book for the rest of the staff.”

Ingenious! From this small mention in InsideCounsel, Sept. 2006 at 66, flow several points. The summaries could be searchable on an intranet site, the lawyers generate the knowledge organically – in connection with something they care about, and it would be possible to track hits on summaries and establish a recognition system (See my post of March , 2007 about internal markets for ideas.). A similar idea should apply to attendance at CLE events – the department pays for the registration and costs in return for which the lawyer circulates a summary (See my post of May 1, 2005 for more on this technique.).

Touched on here and there (See my posts of Sept. 10, 2005 on communities of interest; July 21, 2005 on brokering knowledge; and July 25, 2005 about knowledge management and communities of practice.), I haven’t defined communities of practice (sometimes called “communities of interest” or “centers of excellence”). A nice phrasing appears in InsideCounsel, Sept. 2006 at 66, in connection with several innovative steps taken by the law department of Lucent Technologies: “The communities of practice are groups of in-house attorneys that come together monthly or bimonthly to discuss a particular area of the law.”

In my experience, a community of practice sometimes adds material to an intranet site; sometimes invites speakers from law firms; circulates relevant cases and commentary; and often works toward standard terms and definitions in their documentation. At Lucent, there are eight such communities, which cover such topics as competitive intelligence, data privacy, regulatory affairs and open-source software.

In a recent speech, Mark Chandler, the general counsel of Cisco Systems, spoke fiercely and creatively at Northwestern School of Law’s 34th Annual Securities Regulation Institute (See my post of March 8, 2007 for Chandler’s thoughts about the plummeting cost of legal information.). Chandler referred in his talk to the Legal On Ramp.

Cisco and eight other Fortune 500 companies, together with a number of law firms, have created the web site. It will “allow direct access to search the firms’ KM [knowledge management] systems. The site will use wiki technology to drive collaboration.” I think this may be the same group that in mid-2005 announced a collective effort focused on the legal needs arising from the HR function (See my post of July 21, 2005.). Chandler hints broadly that securities work will be one of the first targets of the system.

My thought is that all the information in the world, easily found and at no cost, only partially helps a busy in-house lawyer who needs to answer a particularized set of legal questions. Answers – information – won’t help if the questions are unclear and balancing considerations is required. I’m also surprised that law firms will agree to scrub their intellectual property of client identifiers and give it away.

As veteran lawyers retire, invaluable experience goes with them. To ask them to write down their hard-won tacit knowledge is to be disappointed: few people like to write. “Enterprise search” capabilities, from such companies as Autonomy in the UK and Fast Search & Transfer in Norway, are alternatives on the forefront in the war against talent drain, according to the Fin. Times, Nov. 22, 2006 at 9.

Another tool is video recording. The same article describes how Ove Arup, the UK engineering group, salvages knowledge from its employees. “Ove Arup pensioners now record briefings on their specialist topics to video. Using Autonomy software, later generations of workers searching for information will be able to pull up relevant segments of the videos as well as text.”

It would be a far-thinking law department that arranges videos of post-mortem sessions (See my post of Dec. 10, 2005 on reviews after litigation concludes), or after someone attends a CLE event (See my post of May 1, 2005 on how to spread CLE learning.), before the retirement of a key lawyer (See my post of Sept. 4, 2005 on demographic forces.), and during training programs run by outside firms (See my post of Aug. 26, 2006 on other forms of experiential learning.).

A decade plus of committed involvement in a subject is the pre-requisite for expertise. Jeffrey Pfeffer and Robert I. Sutton, Hard Facts, Dangerous Half-Truths & Total Nonsense: Profiting from Evidence-Based Management (Harvard Bus. School Press 2006) at 93 state that Anders Ericsson’s research across many domains leads to this conclusion: Expertise results from “approximately 10 years of nearly daily, deliberate practice, for about four hours a day, by people who somehow (e.g., coaching, skilled peers or competitors, or books) have access to the best techniques” (See my posts of June 12, 2005 on Herbert Simon’s 10-year rule on expertise; July 15, 2005 on how to increase “deep smarts.”; and Nov. 6, 2006 on effortful study.).

I wonder how this threshold for expertise could be tested for in-house counsel. I also wonder whether the bar might be rising – does it now take a dozen years? – as the world becomes legally more complex and there are more people competing for expert status.

Moreover, Pfeffer and Sutton continue, “Once achieved, exceptional performance can’t be maintained without relentless effort.” Doesn’t that mean that fluency and understanding in an area of law withers if not used? In-house counsel who want to stay on top of their game must put forth unabated effort.

Patent applicants will soon be able to tap the on-line, collective knowledge of other patent lawyers. The New York Law School Institute for Information Law & Policy has collaborated with the Patent and Trademark Office – along with a steering committee of patent lawyers from Red Hat, GE, Microsoft, and HP – to launch the pilot program around April 2007.

As described in InsideCounsel, Dec. 2006 at 38, the program will invite law departments to expose their patent applications for four months on a publicly-accessible website. Anyone will be able to comment on the applications, especially if they know of prior art or want to add other comments such as a ranking of the claims. The knowledge network will help the PTO examiners more quickly and effectively evaluation applications and qualify the application for speedier processing.

One can imagine something similar for IRS private letter rulings, SEC comment letters, EPA advice, or FOIA requests. Perhaps I am naïve and I certainly do not know the applicable regulatory laws and practices, but if information requests could be redacted of information that identifies the requester, the collective experience of the practice community could add information for the reviewers and the community members could learn from it themselves.

If such public for a for commentary come into existence, the work of in-house counsel who practice in those areas will change. New developments will spread more quickly, comments will become a proactive involvement in the evolution of the law, search tools and online abilities will be more important, and a new source of guidance and learning will be at hand.

No one in law departments makes much of training provided to them by outside counsel. Firms sometimes offer CLE credits to law departments who attend their training sessions. A few firms offer access to precedent databases. But real training, purposefully showing the corporate lawyer how to do something, doesn’t come up.

An objective outsider could well say that training should be expected and significant, but many circumstances may explain the miniscule role. I offer seven possible rationales.

Partners at law firms don’t want to surrender their intellectual capital – knowledge is power (to charge high fees). Law departments don’t want to pay astronomical hourly rates for training which may never be needed. Outside counsel don’t know how to train others and are not rewarded for doing so. Inside lawyers learn by doing, so law firms may believe there is no need to make a big deal about formal training. Outside counsel mostly provide brute manpower, so legal training isn’t that important. The specialty legal questions shipped to outside firms are so esoteric that it doesn’t make sense to train formally. Inside lawyers are too swamped to learn deliberately. Sophisticated legal work is mostly tacit knowledge, learned by watching an artisan at work, not explicit knowledge checked off from a cookbook.

If a law department compiles guidance for its clients, and perhaps for its own members, regarding recurrent legal questions, some people term it a “resource guide.” This was the idea expressed in the Corp. Compliance and Reg. Newsletter, March 24, 2006.

The benefits of a resource guide that people consult are multiple. Clients become more educated consumers, the law department handles fewer pedestrian requests for services, everyone becomes better trained, standards and procedures are made clearer, and legal costs drop.

A resource guide is one branch of the tree of knowledge management; its other branches include guidelines, intranet sites, client training, self-service models, post-mortems, and frequently-asked questions (See generally my post of Dec. 20, 2005 on these investments.).

Along the lines of the internet making available much management information for in-house counsel (See my posts of March 26, 2006 about open-source management information; Jan. 10, 2006 about internet tools; and Jan. 13, 2006 on more resources.), give some thought to the potential exemplified in a new website called IP Law Book Reviews.

Hosted by HSC Press of Pasadena, CA, the site currently categorizes and summarizes more than 200 books on intellectual property law. The site is intended primarily for IP legal professionals. It does not include casebooks or more than a few of many the IP books for inventors, business lawyers or executives, nor does it include books that are out of print.

This is a very specialized niche, an example for law departments of the long-tail effect. One can imagine many other sites like this, all of which together will give in-house counsel another level of resources.

A new technique that might be useful for large law departments is organizational network analysis (ONA), also known as social network analysis (See my posts of Dec. 19, 2005 on top business concepts; and Aug. 2, 2006 on what we don’t know.). One company developed its organizational network analysis by asking each person to estimate the typical amount of time save per month as a result of resources, information and help received from coworkers.

A thoughtful article on ONA in MIT Sloan Mgt. Rev., Summer 2006 at 31 by Salvatore Parise, Rob Cross and Thomas H. Davenport, offers ideas for how law departments can use ONA to reduce the loss of knowledge when a veteran lawyer leaves (See my posts of June 12, 2005 and Oct. 18, 2006 on this knowledge loss.). The issue of knowledge loss is not just about specific expertise walking out the door and also about a group’s collective ability to get work done.

Departing lawyers leave with much more than what they know; they also remove whom they know and who knows them and their contribution to a knowledge network. Some lawyers are "central connectors," the hubs of a network of knowledge. Others are "brokers" who help integrate law departments that have a silo structure.

The cost of acquiring knowledge may be so high that it exceeds the utility of the knowledge acquired even if that utility is also high. This point from Richard A. Posner, Public Intellectuals: A Study of Decline (Harvard University Press 2001) at 153, applies to knowledge management in law departments – do we want to divert a senior lawyer to push it (See my post of July 21, 2005 on several other prods.) – and to productivity metrics – do we want to track internal times (See my post of Jan. 13, 2006 for pros and cons.). The calculation holds for evaluations of law firms – do we insist that lawyers complete rating forms online – and acquisition of billing information – do we spend time to make sense out of task codes (See my post of April 23, 2006 on UTBMS codes.)?

On this construal, if the law department can reduce the costs of information acquisition, it can delve deeper into matters and activities. An example of this would include electronic billing as well as full-text searching (See my post of March 5, 2005 on Google Desktop Search.), both of which reduce the costs of knowledge drastically and therefore correlatively open up more opportunities to make use of knowledge.

For law department lawyers who take the time to forage on the web sites of large US law firms, the pickings can be priceless. Thus, the Bloom Group has done law departments a service when it evaluated 20 prominent firms based on their site’s usefulness of organization for potential clients and depth of content. The review, conducted from Dec. 2005 to March 2006 is presented in Consulting, July/Aug. 2006 at 37. The Bloom Group gave each site it reviewed ratings of 0 to 5 on 65 criteria, so the maximum number of points any law firm could achieve was 325. The best site barely achieved a 50 percent rating.

Here are the top five and the bottom five, with their point totals: Wilmer Hale (164), White & Case (159), Paul Weiss (153), Arnold & Porter (153), and Shearman & Sterling (143).

The lowest rating five, those with the poorest organization and least useful material, were Covington & Burling (107), Sidley & Austin (105), Davis Polk (98), Williams & Connolly (74), Cravath Swaine (69) and, blush – Wachtell Lipton (41).

A few years from now, perhaps, in-house counsel may benefit from new search methods when they want to ask a question about a legal issue. Imagine a web site that collects all the postings on a certain area from blogs and law firm sites and legal publications – candidates might include environmental or employment. When in-house counsel search that mass of material, the software tracks the searches and pages they visit. Second, the searching lawyers can tag items as useful or not. Third, the software will do what the online search engine Ask does, which is to group items by theme. Already there are search engines, such as Clusty.com, that display results in thematic bundles.

The more various lawyers in a specialty use that material and enrich it with their tracks, tags and themes, the more useful it will be for other users. The idea is to look not only at links between pages, but also between people, and use social search techniques.

Hans Albers, Cisco’s Director of Legal Systems for the US and Canada, describes his department’s legal information platform in Law Dept. Quarterly, Vol. 2, May-July 2006 at 28. Any Cisco lawyer can post a question or start a “conversation,” and any other lawyer can post replies offering information and ideas. The system is indexed so Cisco lawyers “can look up all the conversations on certain themes, almost like an internal searchable blog.”

If the system has robust searching capabilities (See my post of Feb. 19, 2006 on advanced searching techniques such as by concepts.), it could help immeasurably. It sounds fairly easy to use, doesn’t take much time, and has both immediate and longer-term payback for all. What would be nice would be to have some usage metrics from the 150-lawyer department.

Why do corporate lawyers recoil when urged to contribute to knowledge management systems (See my post of June 15, 2006 on obstacles to knowledge contribution.)? At least 11 reasons explain the reluctance, and I have listed them roughly in decreasing order of importance.

Time. To put anything into a knowledge system, or to do anything to support it, takes time. Time is the inside lawyer’s most jealously guarded resource.

Power. If the contributor is the only one who knows how the knowledge, such as how to interpret the export/import rules, why share it and weaken job security?

Criticism. When you contribute something, it makes you seem prideful and opens you to criticism

Implicit. Many lawyers don’t stop to consider how they think, or what they processed to reach a conclusion. It’s hard to recapture the insight on the wing.

Discipline. You have to organize and shape your thoughts, which is difficult – the same problem that afflicts many people when they write.

Solecism. The contributor has already learned, who knows when another lawyer will need to draw on that learning, and the next lawyer may not even know what he doesn't know.

Context. Every contribution of knowledge into a system has context. To fairly and usefully locate the knowledge in terms of all the circumstances around it proves to be difficult.

Risk. Others may misuse the contribution. This worry is at the core of resistance to a client self-serve model.

Flow. In the midst of turbulent activity, it’s hard to pick out the nuggets of knowledge that will help someone later.

Bureaucracy. Sometimes the system requires a gate keeper to authorize new entries. The person may throw up more work, paperwork, persuasion, or delay.

Retrieval. It is hard to find the needle with our search tools (See my post of July 21, 2005 on software that helps collect knowledge.). If a potential contributor hasn’t found the system to be useful, why would they assume a different, positive result for others?

Lawyers in-house balk when asked to add information to a matter management system, to submit budgets on matters or for their practice group, to evaluate those who report to them, to do status reports, to evaluate outside counsel, to add material to a knowledge management system. They are reluctant to contribute information because “In my world, I know what I need to know.”

Lawyers may understand the collective good, but see little individual benefit (See my posts of March 5, 2005 on altruism not overcoming reluctance to contribute to knowledge management efforts; Dec. 21, 2005 on disappointing levels of contributions to intranets; and April 14, 2005 on erratic evaluations of outside counsel.). The higher a lawyer rises, the valuable becomes the aggregated individual pieces of information.

A German professor, Reinhart Koselleck, published a remarkable lexicon of 115 fundamental sociological concepts. The multi-volume work tracks origins, usage and meaning over time of those core ideas. Concepts such as “revolution,” “state,” “civil society,” “democracy,” and “crisis,” are discussed at length, according to an article in the Journal of the History of Ideas, Vol. 67, April 2006 at 345.

I have tried to offer some definitions of terms that are often used in law department management (See my posts of May 3, 2006 with cites to 23 definitions; May 1, 2006 on “value added’; and May 16, 2006 on “chargeable time.”), and now appreciate that concepts have also appeared often in these posts.

Words may be defined but concepts need to be interpreted. Basic concepts in law department management, such as “centralization,” “client satisfaction,” “productivity,” “reporting,” “structure,” and “technology,” ought to be treated as more than meanings of terms that can be unambiguously defined. According to the article, concepts are "inherently controversial and contested,” and law-department management concepts, the ideas that under-gird most of what is involved in running an effective department, share this protean, ideological, and historical fluidity. They deserve discussion, not just definition.

In a piece that describes the convergence program of Schering-Plough, Met. Corp. Counsel, Vol. 14, May 2006 at 45, the company’s general counsel (Tom Sabatino) explains his expectation of work product sharing. Sabatino looks to his “Core Team,” which will “get somewhere between 70 and 80 percent of all Schering-Plough’s US legal work – excluding patent prosecution work (but including patent litigation.”),” to “share work product on an ongoing basis.”

In a large department, a person could be assigned full time to locating, redacting, and distributing work product among convergence firms. That would be time well spent, would not need to be a lawyer, and would save money.

I have previously written about post mortems, aka after-action reviews (See my posts of Dec. 10, 2005 and April 2, 2005.). Some law departments reflect back on major matters to see what they can glean from them that will help them handle similar matters. Some departments use post mortems to give guidance to business as to what to do to prevent future problems.

I suspect that every lawsuit harbors many lessons for how the business could operate more effectively so that a recurrence becomes less likely. Even if a change in procedure can’t prevent an irrational or nuisance lawsuit, the new way of working might lessen the liability or improve the defenses.

A 10-page screed by the executive search firm BCG aimed at law firm lawyers, as it exposes “several little known facts about going in house that may not necessarily make it the best decision for you.” One of the five plagues unleashed by a move from a law firm to a law department is that “your legal skills are likely to deteriorate once you go in house” (id at 1).

By the lights of BCG, “a large portion of the responsibility of many in house attorneys is to farm out challenging work to the appropriate law firms.” Hence, “it is unlikely you will stay abreast of the law once you are in house because you will have no reason to” (id at 8).

BCG is wrong-headed. In the questions of law that matter to a business, internal lawyers become very specialized. And, equally wrong, the ideal inhouse role is not the potted palm, the roundtable for the trains of outside counsel.

Specialized, deep knowledge of an area of law is not the only way to be a quality lawyer. A quote by the UK’s Carphone Warehouse group corporate counsel, Tim Morris, makes the point. “On any given day we might be working on anything from an acquisition to a commercial agreement. That way it keeps everyone interested and it’s a good way of keeping high-quality lawyers.”

A law department that has its matter management system produce graphics and analyses relies on what is called “business intelligence” software. “BI software extracts data from databases and turns them into human-readable reports,” according to an expert quoted in the Financial Times, Jan. 25, 2006 at S5. BI software uses features such as “data mining, alerts and pattern matching” to make sense out of structured data in databases and spreadsheets.

A law department that uses concept-searching software on its accumulated work product, to find similar agreements for example, relies on a “knowledge management” approach. KM software, as compared to BI software, has its roots in linguistic analysis and aims to help law departments share and apply tacit knowledge. KM software uses taxonomies, semantic rules, sophisticated searching, and fuzzy logic to make sense out of unstructured information such as emails, slides, and memoranda.

I have a bone to pick, and two other bones, with those who expect their law department intranet site to include a directory of resident experts in various areas of law. “If you have a bankruptcy question, call our guru, Rees,” and that kind of listing.

Much like many lawyers reluctantly add documents to a knowledge repository, because it feels arrogant to claim that the document is worthy of recognition and widespread reliance, they shy away from being described as an “expert.”

Bone two is that many lawyers know quite a bit about an area, for example export compliance, but they may not want to be tagged as a SME (subject matter expert) where a colleague could plausibly lay claim to that exalted status, because of the poor reaction of the competitive colleague.

My third bone concerns the demands on the SME’s time if that person has a day job, yet still feels obligated to field all the calls tapping into the brain trust. One law department I worked with had a lawyer possessed of considerable anti-trust experience, but that person also led a group of business-unit lawyers. No one can serve two masters well.

Some issues arise with dubbing people “experts,” make no bones about it.

The law departments of many mature, large companies may well rely on lawyers whose age averages 48 or more. At that age, retirement beckons only a few years away. According to an Accenture study in 2005 of 1,400 workers aged between 40 and 50, companies have woefully failed to memorialize their experience (Fin. Times, Jan. 25, 2006 at SR 1). “Nearly four in 10 respondents said their organizations did not have a formal process and/or tools for capturing their workplace knowledge.”

The loss of highly-valued skills and knowledge as baby-boom lawyers reach retirement age ought to worry law department managers. Those managers need to train successors, gather material that is online and searchable, post guidelines, interview the experienced, prepare outside counsel, train clients, and consider retaining them after retirement.

I have had the impression that law department libraries, and the professionals who maintain them, have been vanishing into the online world, bowing to the availability of information about anything on the Web (See my posts of Jan. 10, 2006 about lawyers online and Oct. 31, 2005 about online legal resources.), or have been line item strikeouts during budget cuts.

To the contrary, according to data from the 2005 Hildebrandt International Law Department Survey. Of 130 law departments that reported position information, 26 of them had a “Librarian,” and 12 of them had “Information Center/Library Staff.” The total library positions compared to the total lawyer positions means a ratio of one librarian for every 123 lawyers.

In-house counsel use word searching frequently. In Microsoft Word, for example, you can use the “find” function within a single document or in Outlook across directories. Lawyers are also familiar with Google Desktop Search and its ability to search for multiple words (See my post of March 5, 2005.)

In-house lawyers also generally feel comfortable with Boolean word searching. From early days of using on-line tools in law school, they learned to search for a word within five of another word (proximity) or one word before another word (relative location). But, the most powerful technique should be concept searching.

Concept search software looks at a portion of text, or perhaps an entire document, and characterizes it by certain words, their frequency, and synonyms to those words. Using that entire package of interpretation and various search algorithms, the software finds elsewhere what it deems conceptually-similar passages.

Much more powerful than single word, multiple word, and Boolean word searches, concept searching appears most commonly in litigation support. As the techniques improve, concept searching will be of inestimable value more generally in law-department knowledge management and even helping clients.

Two vendors at LegalTech, Syngentics and Attenex, offer software that creates visual displays of information. For example, the programs show e-mails that are related to each other by some concept and how they are related. The visual displays look like dendrites and synapses, or spiral nebulae, full of nodes and branches. Color coding adds even more information, so that the person looking at it can take in a great deal of information at once.

What else? What about cases citing other cases? Thomas Smith, a law professor at the Univ. of San Diego has started to map how cases, opinions, and statutes connect to one another (Legalaffairs, Vol. 5, No. 1, Jan./Feb. 2006 at 65). Among “more than four million federal and state cases, almost a quarter were cited just once before lapsing into obscurity.” Narrow the set to Supreme Court decisions and “56 percent of the citations were made to just 2 percent of the cases.” As for law review articles, “nearly 80 percent of citations refer to just 17 percent of the 385,000 articles from 726 journals in Smith’s samples.

I can imagine a similar analysis of authorities cited in briefs or in a large firm’s precedent collection. The findings should invigorate study by lawyers of the most pivotal cases, regulations, statutes, or treatises See my post of Sept. 24, 2005 on Pareto’s Law.). When all the data shows visually, the sweet spots of legal learning will claim their due.

Kenneth Jones, COO of Xerdict Group, writing in The World of Intranet, Extranet and Portal Technologies, International Legal Technology Association (Jan. 2005 at 16, thinks that law firms can develop business with a law department by giving the department access to a secure, online collaboration product – an extranet, a portal.

The site would allow the law department to see such material as “client invoices, working procedures, litigation reports, document templates, telephone listings” and other commonly requested information (id. at 17). According to Jones, the law firm could also load the extranet with business development information, which would supplement its marketing efforts.

My reaction is that law firms ought to consider posting substantive material that the law department’s lawyers might use. New case decisions, proposed regulations, checklists for common activities, examples of frequently-used contractual provisions, issue taxonomies and other boons will earn gratitude. True, such material allows in-house lawyers to serve themselves, which might reduce some demand for the law firm’s services, but the larger gain of more and better work could compensate.

To some extent, too, material on management practices at other companies would attract and impress the law department readers.

Previously, I urged lawyers who practice in a company to network with other lawyers in similar roles (See my post of Dec. 19, 2005 about PELF.). In the future, in-house counsel will network as they contribute to wikis. The most famous wiki is Wikipedia en.wikipedia.org/wiki, a web-based encyclopedia that rivals any commercial, hard-copy offering, but legal wikis are sure to sprout.

When a critical mass of in-house lawyers who handle bankruptcies, for instance, start a no-cost sharing of experiences, documents, guidance, Q&A, lobbying information, and evaluations of outside counsel, the collective expertise available in an easy-to-use wiki – much better than listservs or websites or blogs – will attract more users. A network effect will propel the legal wiki medium (For more on wikis, see Keith Ecker, “Wiki Revolution,” InsideCounsel, Feb. 2006 at 40.).

Quickly, law firms will realize that if they make useful, timely contributions, buyers will take note. In fact, law firms with a practice specialty will seed and support the wikis.

Eventually, legal wikis covering a practice area or industry will separate into free sites and membership sites. The bypassing of accepted disseminators of legal information will continue apace.