Wednesday, 25 May 2011

Free speech, football & how companies think

Time for a quick mid-week post.

In the past few days, Twitter has been on fire in the UK with questions about privacy, footballers and court injunctions. The Tweeps I follow are 
mostly lawyers in the UK and the US. This group of people has a particular angle on the current debate. Wherever they stand on the individual case in hand, most are horrified by the damage that's being done to the rule of law. So am I.

Just to get it out of the way, on the narrow case, 
I'm in the camp that declines to name the person in question for so long as the court order is in force. At the same time, I have a great deal of sympathy with those who think the judges in England are a long way past what Parliament envisaged when it enacted a right to privacy. I'm extremely uneasy about sacrificing the privacy of thousands of people on Twitter by revealing their identities to the well paid lawyers for a wealthy adulterer.

But nobody with any sense is reading this blog for my views on free speech, because there are hundreds of people better informed and better placed to comment. Nor should they be reading this blog for my views on football. I throw the sports section of the weekend papers away, unread.

If you're reading this blog, it should be because you're interested in the viewpoint of a decent sized company's General Counsel. Right now, in 2011, the really serious hard-headed pragmatists of the GC community are not much present on Twitter or on the blogosphere. There are lots of different types of lawyers and I don't have any views on the merits of any particular group. The relatively small tribe I belong to spends its time making very brutally realistic decisions about money (which we count in dollars), defending companies in front of regulators, hiring and firing people, counting all kinds of cost.

The aspect of the debate I feel qualified to comment on is "What will Twitter do?" I think it's worth providing some guidance on how (large) companies think in situations like this. Here are a few anchor points:

1. Companies want to be seen to obey the law. No company wants to be above the law and they will go to great lengths to stress this. They will try to obey the rules that apply to them.

2. Companies will avoid forming moral or social judgements about their customers. They don't want to pass judgement on the the class, race, nationality or views of their customers. They want to understand them, influence them, but not judge them.

3. Companies want to stay focused on the narrow goals in front of them. They don't want to be distracted into questions about conflicts of laws, who's right, whether democracy is best etc.

4. Companies take very seriously their responsibility to provide prosperity to their employees and their shareholders. Senior managers know their decisions affect thousands of people's livelihoods.

What does this mean for Twitter? Rule 1 means they will stress the need for everyone to be responsible and obey the law. Rule 3 says they will do precisely nothing about complying with English court judgements any more than they will Iranian ones. Rule 2 says they will on no account delete the accounts of the Tweeps who flout English court orders. Rule 4 says they will do nothing which damages their brand and allows someone else to replace them.

If you're a lawyer working in the field of free speech or privacy, don't for a moment believe that Twitter is bothered about such topics except insofar as they relate to Rules 4 and 1. If you want the attention of their legal department, go to the courts in California. If you plan to try to infringe Rule 4 and damage their commercial offering, for example by introducing a system to pre-approve tweets as a PR wrote in today's Guardian, expect a fight to the death.

Earlier today, when a European Twitter manager contradicted Rule 2 and passed judgement on the Tweeps, it was less than an hour before he issued a "clarification".

If you wanted a football analogy, large companies are like the German national side. It may not be pretty, but it's all about getting the result.

The day after this post was published, Legal Week ran the following: Twitter general counsel defends company's stance on fighting for its users' rights and hits back at BBC

Thursday, 19 May 2011

Law, Business, Sex and Cookery

Right. This one is going to be a little different, more of a polemic. 

Before we get to talking about sex and cookery, let's discuss elitism and intellectual snobbery. Many of those reading this post are lawyers, and, judging by a continuing theme on twitter and in blogs, there are a good number of lawyers who believe that the law is an Olympian construct of the intellect, a triumph of ideas, far above the grubby world of business. This notwithstanding that many of history's eminent lawyers, starting with Cicero, were men on the make. 

I'm a big believer in the rule of law. 
But everyone has somebody who looks down at them. I did my undergraduate degree in the physical sciences, trying (only partly successfully) to get to grips with courses like Quantum Mechanics. My tutor was a genius. I got a decent degree but, at the end of the 4th year, my tutor's career advice was "be a lawyer". You could roughly translate that comment as "You're something of an intellectual dilettante. Some of your thinking is basically sound. You seem to enjoy an argument. You're very average at science. Why not leave it behind and go and hang out with the crowd doing law". 

I suppose my tutor would have approved of the route taken by Ludwig Wittgenstein, who studied aeronautical engineering before going off to dabble in philosophy. This is the school that believes that, if you want to spend your time debating the nature of language, it's best to train your mind first by getting to grips with something important, like fluid dynamics and the design of wings. Next time you want to know what's more important, the Tractatus or fluid dynamics, try looking out of the window on Easyjet on your way to Tuscany or Provence or wherever lawyers are supposed to spend their holidays. The thing that's keeping you and your fellow holiday makers up in the air isn't "Wovon man nicht sprechen kann, darüber muß man schweigen." I never understood why people thought that comment was so clever anyway.  

Many lawyers seem to take the same approximate approach to the teaching and practice of business as my former tutor in physics did to the teaching and practice of law. It's all relative (ho, ho, wouldn't Einstein be proud). As Ben Hoff tweeted, ironically, to me yesterday "Law and Business just don't mix. Everyone knows that". 

But people who really think that are missing the point. Even if law is something that physicists look down on, it is a construct of the intellect. I don't think business is the same category of thing at all. Business is like cooking or sex. It's a human appetite, some kind of atavistic drive that everyone has and everyone does, to a greater or lesser degree. Swapping and hoarding things is something the very youngest children do. You don't have to teach people to be businesslike, any more than you have to teach them to eat. They do it quite instinctively. They start doing it at birth and do it throughout their life, weighing the value of things around them and competing in almost everything they do. Human nature impels people towards being naturally businesslike.

Let's have a closer look at cooking (easier than a closer look at sex). I hope nobody reading this would dispute that the quality of cookery spans a huge spectrum from, say, beans on toast at some god-forsaken motorway service station to haute-cuisine at a great restaurant. They may grumble about the number of TV chefs, but nobody in the law faculty at a university takes the time and trouble to criticize people who teach and practice cookery as less worthwhile than teaching or practising law. Why would they? It's a different category of thing. People who spend their days debating the meaning of justice are perfectly capable of heading to the market to select ingredients before going home to make a killer soufflé

Some people care passionately about food, some less so. Some people are naturally good at cooking, some are not. But everyone can improve and, in the hands of some, cooking reaches the level of an art. 
The French shudder when they think of the approach of the British to cookery (although they're as out of date as those Brits who think the French wear berets). Jacques Chirac famously said about the Brits "You cannot trust people whose cuisine is so bad". 

The same holds for business. Some lawyers shudder at any attempt to encourage law students or practitioners to be better at business. But why? You don't need to forswear business in order to maintain your intellectual purity as a lawyer, any more than you need to 
take a vow of chastity. Being a lawyer is not the same as being a monk.

Being told "you're bad at business" is like being told "you're bad in bed". I have only one message for lawyers. Don't stand for this drivel. If you like cookery, cook. If you enjoy business, then throw yourself into it
. You may have natural aptitude, you may not. If you're prepared to learn from others who know more than you do, you'll improve. If you get really good, you might even make it into an art.

Sunday, 8 May 2011

Toyota's production system - even the doctors are using it

Having tried more than once, I can attest that it's difficult to persuade smart professionals, like lawyers, that they have something to learn from the production systems that companies such as Toyota have developed for manufacturing cars. After all, what could possibly be the connection between making cars and giving legal advice? 

A few of the people reading this post will be old enough to remember when cars were routinely unreliable, before the Japanese car industry's greatest gift to the world's motorists - reliability as standard. Nowadays, we take it for granted that our cars, whoever makes them, will start every morning and run without breaking down. But that wasn't always the case. The car industry is one of the biggest in the world and it succeeded in making a major transformation in quality. It's worth stopping to ask if there's anything we can learn.

You can read plenty of articles on the topic of "legal process engineering", but this post isn't about LPO or cost reduction. It's about something much more important than that. Instead, I want to ask what the mentality behind the Toyota Production System (TPS) could do to increase the quality of what we do as lawyers. 
Rather than dive into details about manufacturing, which will turn a lot of readers off, I think the best way to unlock this topic is by looking at healthcare. 

In 2005, Steven J Spears published an article in the Harvard Business Review entitled "Fixing Healthcare from the Inside, Today". You can find it at this link: HBR has a paywall, so it will be worth me summarizing the core idea:

"Every year, 98,000 people die in U.S. hospitals as a result of errors. And as many as 65 out of every 1,000 suffer injury or illness as a consequence of treatment. In the nation that leads the world in medical science, what explains these alarming statistics? It’s not that health care professionals lack intelligence, training, or compassion. Rather, operating under ambiguous, complex conditions, they work around problems to meet patients’ needs.

Problems’ root causes go unexamined. Result? The same problems crop up repeatedly—sometimes with tragic consequences. How can health care professionals radically improve patient care quality? Abandon work-arounds. Instead, apply the same operations-design principles that drive the renowned Toyota Production System (TPS): use small, rapid experiments to uncover and solve problems as they occur. Clarify who’s responsible for doing which procedures—and when and how. Foster a culture of continuous improvement by helping colleagues apply the experimental method to their own challenges. By improving their work while they’re actually doing it, health care practitioners can deliver extraordinary savings—in lives and dollars."

There are some really striking examples in this article. One of them concerns reducing infections when patients have a central line inserted. In several hospitals in Pittsburgh, doctors reduced deaths during a given period from these types of infections from 19 to 1. They achieved this by making small, almost trivial, improvements, such as replacing opaque wound dressings with transparent ones. The transparent dressing allows nurses to see at once if an infection is developing. 

Another example concerns moving the gloves inside the sterile surgery kit from the middle to the top of the pile intended for the doctor to use during a surgical procedure. Previously, after scrubbing up, the doctor would have to touch several items in the pile in order to remove and put on the sterile gloves. After the change, the gloves were always on the top of the pile, so the doctor could put them on before touching any other items.

These tiny changes saved people's lives. If they were made widely, thousands of people who currently die during treatment would live. Frightening, isn't it. Every single one of us has a vested interest in making sure this happens. Many people go through their lives without needing legal services, but the healthcare system has a near 100% capture rate, because all of us get sick at some point and, sorry to put it so bluntly, we're all going to die. Let's just hope that isn't because of an avoidable infection in a hospital.

One of the important points that comes through in the Spears article is that doctors are smart people, who care about their patients and try hard to do their jobs well. That description would apply equally to many lawyers. One key 
insight from the TPS is that, instead of relying on smart people to work around problems, you should remove the problems by analyzing what causes them and fixing them by making changes in what's "normal". The only thing that matters is the quality of the output to the customer and you analyze everything accordingly.

I don't think it's a sensible use of space in this blog to go into a lot of detail of the methodologies used in the TPS. If you're interested to read more, I'd recommend John Shook's book about value stream maps: The principles are easy to understand and you can start "trystorming" almost at once. Embedding the mentality more deeply is where the challenge lies. 
I've personally used the methodologies from the TPS to improve the quality of legal services delivered by teams I've managed. I don't think it's a panacea, but it is a powerful tool for some kinds of problems.

If doctors can make these kinds of improvements in the delivery of professional services by applying this kind of thinking, surely there must be something there for lawyers? I believe there is and I think it's about something more fundamental than the cost of our services. It's about the quality of them.

Since this was published, Simon Lewis posted such a useful comment, that I am adding it to the main text:

Anthony Kearns' compelling article "What Law Firms Can Learn from Airlines and Hospitals: Risky Business" The AmLaw Daily July 6 2010 also explore some of the issues raised here. It concludes that "the adoption of these principles presents significant challenges given the way lawyers are trained and law firms are structured and managed." (


Next time, I am going to turn to cost. I'll describe an online procurement process we recently used for a multi-jurisdiction project and ask how can we answer the challenge in this week's Economist magazine about reducing the cost of legal services.