7 Expensive Ways Lawyers Fail at Knowledge Management

This post is the second in my continuing series “Knowledge Management for Lawyers”
Part 1: 7 Expensive Ways Lawyers Fail at Knowledge Management
Part 2: Track Your Results!
Part 3: Establish a Routine

knowledge managementAs an attorney, particularly a litigator, I’m conscious of how much valuable information I carry with me just from my experiences as an attorney.  I’m usually able to tell you right from the start of a case whether discovery will require filing a motion to compel.  I’ll be able to tell approximately how long a mediation will take.  I’ll even be able to predict at what point during the litigation the matter is most likely to settle.

I provide better service to my client, and increase the value of the services I provide, as a result of my experience.

That’s the essence of knowledge management – a business functions primarily due to the knowledge of its employees.  The best form of knowledge management takes the best of that information so that it can be analyzed, shared, improved upon and reused.  The result is higher quality, more predictable service to our clients, and more efficiency for our firm.

So why are we failing at knowledge management?

1) We’re reluctant to rely on the experience of others.

Face it: we’re an arrogant bunch.  As lawyers, we tend to believe that we can succeed where others failed.  That attorney couldn’t get the case settled?  We would have been more persuasive at mediation.  That attorney couldn’t keep that document out of evidence?  Our research would have been more on point.  That attorney lost at trial?  The jury would have liked me better.

knowledge management

Sometimes this arrogance is good – you need to be able to argue confidently even when you have personal reservations about your argument.  It’s an ethical responsibility.  However, it also leads us to believe that we would have done better.  When presented with the experiences of others, particularly when they contradict our own beliefs (or even our own experiences), we tend to disregard them.  We shouldn’t.  Collecting and analyzing data allows in-depth analysis, from situation to situation.  Disregarding the analysis because it wasn’t exactly what we experienced is akin to denying climate change because it was cold out yesterday.

2) When the Talent leaves, so does their Knowledge.

It’s pretty cliche to talk about how your most valuable asset is your people.  But it’s true. They’re valuable for what they provide, for their skill, for their expertise, and for their experience.  Yet, law firms are absolutely terrible at capturing the experiential information of their employees.  Uncollected, it’s only useful when you ask that person about it, provided they recall it on the spot.

Worse, what happens when one of your employees leaves.  We won’t pretend that you’re such a great boss that you’re going to keep every employee forever.  Someone is going to leave, whether it’s out of necessity or because they’ve finally decided that your combover is just too much to deal with. If you haven’t put in a system to make sure you’re collecting the information about a matter that isn’t in the pleadings or the correspondence – like experience with judges, mediators, arbitrators, experts – will be gone.

3) We don’t track results.

To me, this might be the most infuriating aspect of law firm data analysis: why the HELL don’t you track results?  It absolutely amazes me that many lawyers seem to think the only reason you would track cases is to gloat about how many wins and losses you had.  Aside from the need to constantly self-evaluate, analysis of results is a huge component of effective knowledge management in law firms.

Moreover, never limit the results you track – wins and losses aren’t the only thing!  As you’ve seen mentioned already, I believe that tracking negotiations and mediations can be extremely valuable.  By tracking those negotiations, with all parties involved tagged, you can break down the tendencies of opposing counsel, the methods utilized by mediators, and even better predict the outcome.  Even in small cases, don’t you think your client likes to hear about how your complex analysis of opposing counsel gives you insight into what it means during the process?  You’re missing out on a tremendous opportunity to assist AND impress your clients if you fail to track your results.

4) We have “Contact Sheets” when we should have Dossiers.

knowledge managementYour address book, whether physical or digital, has the names, phone numbers, and addresses of all the attorneys you work with (or against).  Hey, say you have cloud-based practice management and your contacts even contain links to all the “related” matters they’ve been connected to.  It’s not good enough.  All that stuff is just information, providing little actual insight – and it’s a missed opportunity to boost your firm’s knowledge management.

Every individual that your firm deals with on a regular basis should have a dossier.  If you’re going to utilize knowledge management, you’re actually going to need to collect and analyze important information.  For attorneys, track the percentage of cases that involve a motion to compel production of discovery responses, the percentage of cases that settle at mediation, after mediation, or during trial.  List the particular negotiation tricks the attorney uses, track how prior negotiations have gone.  Judge dossiers should include links to orders and written decisions.  Mediator dossiers should indicate the rate of settlements and the length of mediation.

For true knowledge management, failure to collect available experience-based information on the people you deal with on a regular basis is failure.

5) We don’t categorize documents with tags.

For the most part, document management is something that lawyers have been simultaneously great and terrible at.  We’re great at organizing a file – pleadings, discovery, motions, correspondence – and it’s often even kept in a way that it can be easily found.  If you have the case file or case number.  Once you start looking for a document based on a category, things get messy in a hurry.

However, even if you’re only partially paperless, your documents should be indexed by more than just the case name and the document type.  Your documents need to be searchable in a nearly unlimited number of categories.  This can best be done by utilizing the “Tag” feature in your PDF files.

My best example: the judge in your case just issued a written order.  Once scanned in (assuming it wasn’t digital to begin with), the following tags should be added: client name, opposing party name, opposing counsel name, your name, judge’s name, case category, case sub-category (if necessary), document type, document date.  Since the needs of a law firm varies a lot, there can be a lot of different types of tag.  However, now that those tags have been added, searching under any of the categories tagged will result in this document (as well as any document similarly tagged) appearing in the search results.

Without indexing your documents with tags, you’ll waste time searching for documents, and what happens if you can’t find it?

6) We never organized our depositions.

Depositions require more than just tags, for a few reasons.  First, depositions exist in many, many formats.  Some come in a proprietary e-transcript formats, some are PDF, others are in hard copy.  Whatever format you use, you need to pick one, I recommend standard PDF.  That way, your searching is much easier.

knowledge management“Find me every ‘Elvis has left the building’ reference for my motion…”

Second, the failure to word-index depositions is killing our knowledge management efforts.  Every deposition needs to have a full OCR run so that you can easily search the text for keywords.  Don’t rely solely on the provided word index.  Even if they’re right, you have to get to them before you can search, so it’s just wasted time.  OCR your depositions!

At the moment, you’re wasting an awful lot of time searching for that expert’s deposition you know you took two years ago.  Or was it three…

7) The information we DO have is unused or unusable.

So we’ve covered all the information that you’re failing to collect, and how they’re costing your firm money.  But you DO have some data, you exclaim!  It’s on your computer, in a spreadsheet somewhere.  It’s in your billable time software.  It’s in all of your old case files, some of it at your document storage facility right next to that nuclear waste holding center.  You know, where it’s safe.

Great, I say.  Show me the results of any analysis you’ve performed.  But you can’t.  Because even though you HAVE some data that could be analyzed, you haven’t done it.  Why?  Because you’re a lawyer not a statistician?  Tell the bank that next time you need a line of credit.  There is no excuse for you to have information that, once collected and analyzed, could save you money and help your clients, yet currently it sits idle.  Moreover, keeping information in a variety of formats, some of which are no longer viable or accessible, renders analysis impossible.  You need to make an effort to collect information that, when analyzed, is capable of making you a better attorney.

You are never too busy to improve.

Check back for my KM 101 for Lawyers for inexpensive ways to fix these expensive failures!

  • http://www.RickRutledgeLaw.com Rick Rutledge

    This article makes me feel like Little Ol’ Me is pretty high-tech; I do, in fact, track and collect a lot of that information, or I can find it pretty quickly.

  • http://www.nickmilton.com Nick Milton

    Good post Brian, thanks

    I think it even goes beyond the valuable information you hold, and applies to the experience and the judgment that makes you a great lawyer. If KM is to add anything that IM doesn’t, then it needs to start addressing these intangibles, and not just the documents.

    • http://www.thecyberadvocate.com/brian-focht/ Brian Focht

      That’s what I will be addressing with my follow-up posts. In my opinion, there is a TON of valuable information that goes unrecorded in law firms. At best, it’s left in the personal memory of the attorney, and we all know that even the smartest people don’t have 100% recall after long periods of time. At worst, it’s lost completely when an attorney leaves and, potentially, put to better use at a different firm. Much of this information could be utilized for efficiency, better planning, and strategy. Capturing and analyzing this information will confer significant value, in my opinion, for whomever does it best.

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  • David O’Connell

    Several thoughts cross my mind when I read this interesting post:

    As a sole practitioner, my database is my mind; but, the little gray cells are dying off, more quickly than I would wish. It would be nice to do what Mr. Focht suggests; but,

    Just what other profitable activities will I sacrifice from my practice to do this? And, like all technical solutons to practice management, why is that good ole’ learning curve going to be? Recently added applications to my practice, Doxcera for document assembly and ActiveWords promise much; but, like learning the guitar, each take time, a lot more than I have to get beyond the baby steps phase. And, after years of practice, I still cannot do the 12-bar blues without trips stumbles and falls.

    That leads to another normative implication of Mr. Focht’s post: Staff, staff management, and the funds to divert existing staff to create those dossiers. This is big firm stuff, which means that I, or my underpaid and mostly overwhelmed worker bees will have to add a layer of time consuming work to the nuts and bolts of work from unlocking the door at the crack of dawn to close down after dark. Adding more work is a non-starter, unless and until other work can be triaged.

    Please forgive this rant, for that is what it is, that has been bounding around in the back of my brain for several, more than several years, everytime I read a post of the next best thing or that gizmo that will solve all my practice problems: The what is always clear, convincing, and plausible in concept and fluid argument; the how is left to the imagination and frustration of the implementer.

    Must the solution to a costly problem always be to impose a costly solution?

    • http://www.thecyberadvocate.com/ Brian Focht

      Well, thanks to Time Warner, my complete response to your post was just deleted, so I’ll repeat in condensed format:

      Most of these suggestions actually don’t require spending a bunch of money, learning an expensive new system, or adding a bunch of time to your current processes. The solutions CAN be expensive, but as the article discusses (and my first follow-up piece begins), I will be offering my suggestions of inexpensive ways to make sure that you’re not just letting this valuable information disappear.

      Thanks for reading, and I appreciate your comments. Stay tuned!

      • David O’Connell

        Dear Mr. Focht:

        Thank you for your incredibly prompt reply. I guess I am not the only one that has lost focus on billable hours this Saturday morning. I look forward to reading your follow up suggestions.

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  • camillapoof

    you mentioned one thing that I found particularly interesting. I am a CDFA, MBA Accountant with a specialization in Forensic Accounting and Audit. I also have a Ph.D. in Psychology particularly Developmental Psychopathology. As a result of my certifications and eduction as well as experience, there are things I do by rote that the average family attorney just doesn’t pay attention to. And I have discovered in my not so many years practicing in a small family law firm, that my knowledge and experience can be vital to the success of our litigation. But it is amazing to me how rarely many if not most family lawyers wait until just before a hearing or a trial date or the date of mediation to even begin to look at the financial documents provided not only by opposing clients but by their own client. The lack of knowledge about the validity of claims on both sides is just amazing to me. There is just the assumption that whatever the client has said is the way it was. All of this makes litigation more likely and negotiation much more difficult because it isn’t until you drop the bombshell of evidence that negotiation can really begin and by then people can be really really angry…even more than they were to begin with. So we do tag information at least within a file, but I love your ideas of taging rulings, documents, etc between files. We do a lot of research when we have complex cases and it would be great if we could access that and not have to reinvent the wheel when similar circumstances arise. And see what the results of our prior efforts were. After all something can sound like the perfect argument and fall completely flat at trial.

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