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

As 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.

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.

Your 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.

“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!