Psychological Techniques For Boosting Creativity

Looking for ways to increase creativity, methods grounded in actual research?  Take a look at this two part series on psychological techniques to boost creativity.  One of my favorites:

People often jump to answers too quickly before they've really thought about the question. Research suggests that spending time re-conceptualising the problem is beneficial.

Mumford et al. (1994) found that experimental participants produced higher quality ideas when forced to re-conceive the problem in different ways before trying to solve it. Similarly a classic study of artists found that those focused on discovery at the problem-formulation stage produced better art (Csikszentmihalyi & Getzels, 1971).

◊ For insight: forget the solution for now, concentrate on the problem. Are you asking the right question?

So many knowledge workers -- lawyers in particular  -- rush to solve problems, because that's what they're good at. But stopping to thoroughly examine the problem not only serves to identify the real issues at stake.  According to these studies, it also helps apparently stimulates creative thinking.

(via Kotte)

Over-processing: Too Much Of A Good Thing

Bruce MacEwen at Adam Smith, Esq. has an interesting post on how the views on quality held by corporate in-house legal counsel diverge from outside counsel. Referencing McKinsey, he divides quality into three segments and explains how he thinks corporate America views them:

• Good enough: Sufficient for almost all purposes almost all the time.
• Excellent: Occasionally needed when germane to reputation, marketplace perception, or positioning.
• Superb: Very rarely required, perhaps only when genuine organizational threats are in play.

He contrasts this with the perspective of outside legal counsel:

• Superb: Why you come to our firm, what we do, and who I am. (Don't for a second underestimate that third element; it's why you get up in the morning and how you hold your head high.)
• Excellent: When we try to execute a representation with some degree of sensitivity to costs, based on a longstanding relationship.
• Good enough: Who do you think we are? You've come to the wrong place.

Assuming outside counsel does the work at a "Good enough" level, Bruce poses the question: "who's to blame-your firm or the client-for the fact that merely sufficient legal advice has come back to bite?"

Good question. And one I'm not prepared to answer.

But let me add a comment from a Lean perspective. The problem with outside legal counsel's view is the willingness to engage in over-processing, one of the seven traditional forms of waste (muda). Over-processing is doing more work, or higher quality work, than is desired by the customer, or using tools that are more expensive or precise than needed.

Outside counsel sees the high quality work as an unqualified good thing (who would want lesser quality?) In-house counsel sees the work as "wasting" their finite budget for legal services. The company wanted a Corolla. Its attorney just built a fully loaded Lexis LS600hl.

The key here is open communication between the client and outside counsel.The client should be clear about what it needs. Counsel should be clear about what it will deliver and at what price. Also, counsel needs to explain the risks of opting for work of lesser quality. And to the extent possible, the client needs to sign off on any such risk.

We also should be careful to distinguish between the quality of work product and the quality of representation. Work product almost always should be high quality. It's the amount or type of work product that should vary depending on the client's needs. For example, a legal brief should be very well written -- no matter what. But whether the brief should be filed should be considered at the outset.

Given the current economic climate, there's sure to be a lot more discussion about the appropriate level of quality, for legal services and virtually everything else we have to pay for.

Does Technology Make You Complacent?

Is autopilot dangerous? The National Transportation Safety Board is holding a three-day conference in Washington, D.C. to discuss pilot and air traffic controller professionalism, including whether automation makes pilots complacent.  The New York Times reports:

Automation is generally considered a positive development in aviation safety because it reduces pilot workload and eliminates errors in calculation and navigation. “The introduction of automation did good things,” said Key Dismukes, chief scientist for aerospace human factors at NASA. But it changed the essential nature of the pilot’s role in the cockpit. “Now the pilot is a manager, which is good, and a monitor, which is not so good.”

...

Finding the balance between too much technology and too little is crucial, according to William B. Rouse, an engineering and computing professor at the Georgia Institute of Technology. “Complacency is an issue, but designing the interaction between human and technical so the human has the right level of judgment when you need them is a design task in itself,” Mr. Rouse said. “When the person has no role in the task, there’s a much greater risk of complacency.”

Law offices certainly don't run themselves. But some functions are now automated, like document assembly, which utilizes software, templates, and the organization's knowledge base. There's no dispute this is a good development, reducing the time and expense of legal work and producing higher quality and more consistent work product.

Yet the danger of complacency exists. The technology makes it easy to produce good looking work product without dwelling on the details of the process. Professionals can be lulled into clicking buttons rather than thinking carefully.  They can overlook special circumstances or reasons for deviating from standard work.

Good countermeasures might include checklists to ensure people think through the issues. There should be a good review process to ensure final quality. And most importantly, as mentioned in the article, humans must maintain a role in the task -- important work shouldn't be completely automated.

Lean bonus: Discussing the Northwest Airlines flight that overshot its destination, the article quotes Chesley B. Sullenberger III, the captain who famously landed the US Airways plane in the Hudson last summer, reminding us to look for root causes of problems rather than reflexively blaming technology:

“Something in the system allowed these well-trained, experienced, well-meaning, well-intentioned pilots not to notice where they were, and we need to find out what the root causes are,” he said. “Simply to blame individual practitioners is wrong and it doesn’t solve the underlying issues or prevent it from happening.”

Also see this post by Mark Graban on aviation, standardized work, and automation.

Is Legal Project Management Going Mainstream?

Jordon Furlong charts recent press on legal project management and thinks it's about to burst on center stage.  He writes:

The day of the haphazard lawyer, who pursues a solution by intuition, experience and the loosest possible timetable, is drawing to a close. In his place is emerging the process-driven lawyer: disciplined, procedural and systematic, who understands that madness lies not in method, but in its absence. Most of us don’t like that idea. We’d much prefer to maintain the image of the ingenious lawyer who triumphs by intellect rather than by procedural discipline. It confirms our belief in our innate intellectual advantage over non-lawyer competitors — and, frankly, it makes us feel better about ourselves.

....

The truth is, much of what lawyers do can be charted, diagrammed and proceduralized, and both the quality and the cost will be better for it. But that doesn’t mean there’s no room for smart, creative lawyers in the future. For one thing, systems don’t need to be straightforward and monotonous. More often than not, especially in the law, they’re complex and challenging, and they can easily be made elegant, precise, finely tuned, honed to a keen edge — the imagery of swordsmanship is intentional. And even within systems, a lawyer’s unique judgment, analysis and creativity can emerge.

I think this right and the whole post is worth reading.  And as I've written before, good processes and standardized work facilitate, rather than hinder, creative thinking.

Why Process Improvement Should Matter To All Lawyers

One thing is now clear: for serial litigants, developing efficient processes for handling e-discovery is critical. Joan Goodchild at Computerworld sings a common refrain heard at the The Sedona Conference Institute e-discovery conference I attended last week:

NBC Universal is one of the largest media and entertainment companies in the world. Chief Information Security Officer Jonathan Chow and his team manage information security for several business lines within NBCU, including its broadcast and cable television to film production, online ventures and its two theme parks in Hollywood, California and Orlando, Florida. Among one of the biggest challenges in the last few years has been the incredible explosion in demand for e-discovery services, according to Chow.

Since different legal teams handle the needs of each line of business, the workflows associated with managing electronic discovery vary as well, adding another layer of complexity. And because of the growing number of cases, and increases in both the amount of electronically stored information and hours spent supporting the process, demand for e-discovery services has increased 30 to 50 percent annually. The costs were spiraling out of control and this sent Chow looking for a way to manage the process internally.

Chow . . . tackled the costly and time-consuming process and turned it into a cost-effective and more efficient system that has seen a 40-45 percent gain efficiency since its implementation.

I spoke with several in-house teams who've done a remarkable job developing standardized workflow for handling e-discovery. In doing this, they've discovered how wasteful the processes were when handled by outside counsel.

But the lesson isn't that in-house teams are necessarily more cost effective than outside lawyers. Outside counsel can do this too. The lesson is that process matters. Efficient processes allow in-house teams to save money for their companies. And outside counsel can give their clients the service they deserve.

Race to Nowhere: How Are Tomorrow's Lawyers Being Educated?

Several weeks ago, I saw Race to Nowhere, a film screening to small audiences in the San Francisco Bay area. This movie documents the incredible demands we place on elementary and high school children. Many of these kids spend over seven hours a day at school, followed by two or more hours doing activities such as sports, music, or clubs. They visit with tutors. When they return home, they have several hours of homework. This over-scheduling is compounded by an incredible amount of time spent consuming media.

Despite these time commitments, children aren't learning more. Educators must increasingly prepare children for standardized tests in order to comply with state and federal mandates, lest they incur penalties and further budget cuts. Teachers spend less time teaching critical thinking skills, problem solving, and instilling a love of learning. Those passionate about teaching lose interest and burn out. Students cram material for the tests, then purge it from memory.

As a result, kids are a mess. They're stress out and sleep-deprived. Boys get frustrated, begin to dislike school and learning, and alarming numbers drop out.  Girls get depressed, and some develop eating disorders and resort to suicide.

And to what end? While U.S. elementary students perform slightly better on tests than those in other countries, this advantage disappears by high school. Tellingly, even the most academically selective universities - think Harvard, Yale, Stanford -- must remediate half their incoming students. That is, fifty percent of entering freshman at our best colleges lack basic reading, writing, and math skills.

How does this affect the legal profession?

Lawyer Sara Bennett, featured in the film, is co-author of The Case Against Homework: How Homework is Hurting Our Children and What We Can Do About It. She left the legal profession partly out of frustration that incoming members of the bar couldn't do the work without extraordinary levels of handholding.  She argues we are creating generations of adults lacking critical thinking skills and the ability to work independently.  Today's adults are still "studying for the test."

Bennett invites us to consider what might have happened to a kid like David Boies today and references this excerpt from his biography.

And then there's this depressing vinette from Ralph Losey.

If our educational system is as infirm as reported, what type of lawyers will lead in twenty years? Will we be equipped to deal with the future's increasingly complex problems.

I've written about the importance of nuturing creativity in young people so that we can solve humanity's emerging problems. We don't seem to be on track.

Our professional institutions also reinforce the problems in our educational system. Law school admissions still fixate on standardized test scores -- despite being a poor measure of lawyerly ability -- draining the pool of legal talent. Associates are "over-scheduled" with billable hour requirements. The work frequently lacks the depth and intellectual content that promotes growth and satisfaction. Attrition rates were high (at least until the recent economic downturn).

What's the lesson here? Recognize that test scores are not the full measure of a person. Acknowledge the human limits on how long we can work, especially when humans are still growing and developing. Provide nourishment and allow time for rejuvenation. Understand that physical and mental health are prerequisites to academic and professional excellence.

And lawyers, and indeed all professionals, should remember their fundamental responsibility: to resolve society's most difficult problems though -- yes, hard work -- but also though creativity, compassion, and other unquantifiable traits that make us human.

The Future of Legal Education: Online?

Ralph Losey persuasively argues that online education will replace bricks-and-mortor education, including law school, as the dominant form. The major advantage of online courses, he claims, is that they are asynchronous, meaning:

A student can logon to study at the time when they are most alert and receptive. They can do so in an environment of their choosing, one that they have found to be most conducive for learning. They may choose to study alone, or in a group.  Some may learn best in a crowded coffee-shop. Others may prefer a quiet room by themselves. For some the preferred time to learn may be in the morning. For others it may be late at night. Online learning can happen anywhere and anytime.

Traditional institutions that ignore this trend -- even our most venerable top universities -- risk being left behind.

This resonates with me. I studied for the California Bar exam while living in Virginia, entitling me to use the study course's audio tapes, rather than having to attend the live lectures.

Granted, it was the bar exam, but it was one of the most intense learning experiences in my life. Since I devoted my days entirely to bar preparation, I could plan all my activities around my personal preferences and natural rhythms. For me, this meant taking practice tests in the morning, studying outlines in the morning and early afternoon, and listening to the lectures in the late afternoon when I didn't have the energy to do much else. I could listen lying down on the sofa when particularly exhausted. I could take breaks at will. I could clear my head with a run. This freedom allowed me to absorb a huge amount of material in the most personally effective way.

This wouldn't work for everyone. Some people need that mandatory lecture in order get on task in the morning. One can't really do class projects and study groups without personal interaction. People learn differently through dialogue. And how do you do the Socratic method in a WebEx session?

But let's leave aside whether this education is better, in the sense of being more convenient, cost effective, and otherwise efficient.  Will online education make for better lawyers?  Or will something essential be lost in translation?

D. Mark Jackson

Don't E-Disagree

Here's what Don Lents, chairman of Bryan Cave, has to say about electronic communications versus business travel:

“You should never engage in a disagreement electronically,” Mr. Lents said he advises [lawyers at his firm]. “If you are going to disagree with somebody, you certainly don’t want to do it by e-mail, and if possible you don’t even want to do it by phone. You want to do it face to face.”

...

“That’s an important message that does not necessarily come naturally to a lot of younger people today who have grown up with so much of their communications being by texting and e-mail,” he said. “I tell our younger lawyers, if you think you are going to have a difficult interaction with a colleague or a client, if you can do it face to face that’s better, because you can read the body language and other social signals.”

“In texting and e-mails or even videoconferencing, you can’t always gauge the reaction and sometimes things can have a tendency to be misunderstood, or they can ratchet up to a level of seriousness that you didn’t anticipate,” he added. “In person, you see that somebody reacting in a way that you didn’t expect. Then you can stop and figure out what’s going on, and adapt.”

Genchi genbutsu in action. Human interaction is so complex and dependent on subtle cues. Especially when two people disagree. I can't think of a context where it is more important to go see for yourself to thoroughly understand the situation.

D. Mark Jackson

Email Poka Yoke

Judge Gerald Lebovits has an excellent article on email for lawyers in the New York State Bar Association Journal. It's comprehensive. My favorite tip is this:

Fill in the address box only when you’re ready to send. The ease of sending out mass e-mail, purposely or inadvertently, means that you must take care when addressing your message. To avoid sending an e-mail before you’re ready, write your entire e-mail, do all your edits, and proofread before you fill in the address box.

This is a nice example of poka yoke.  The process helps the writer to stop and think, minimizing potential errors when composing the body of the message. It also clears the mind before selecting the recipient, making it more likely to be the correct choice between sometimes similar contacts.  And for lawyers, this can be a critical choice, to wit.

In addition, I frequently add my signature to an email only after completely editing it, especially important correspondence. It forces me to be sure I really want to associate my name with what I wrote.

D. Mark Jackson

What Makes a Good Lawyer?

Marjorie M. Shultz, a former Berkeley law professor and psychologist Sheldon Zedeck are trying to find out. The Law School Admissions Council is funding their research into alternatives to the LSAT, the standardized test for law school candidates. They have designed a test that focuses on predicting success, not just in law school, but as lawyers. The new test is based on a survey of Berkeley alums:

The survey produced a list of 26 characteristics, or “effectiveness factors,” like the ability to write, manage stress, listen, research the law and solve problems. The professors then collected examples from the Berkeley alumni of specific behavior by lawyers that were considered more or less effective.

Using the examples, Professor Shultz and Professor Zedeck developed a test that could be administered to law school applicants to measure their raw lawyerly talent.

Instead of focusing on analytic ability, the new test includes questions about how to respond to hypothetical situations. For example, it might describe a company with a policy requiring immediate firing of any employee who lied on an application, then ask what a test taker would do upon discovering that a top-performing employee had omitted something on an application.

More than 1,100 lawyers took the test and agreed to let the researchers see their original LSAT scores, as well as grades from college and law school.

The study concluded that while LSAT scores, for example, “were not particularly useful” in predicting lawyer effectiveness, the new, alternative test results were — although the new test was no better at predicting how well participants would do in law school. Unlike the LSAT, the new test did not produce a gap in scores among different racial or ethnic groups.

There are serious limitations to the study, as the article points out, and law schools are far from ready to dump the LSAT. But this research reflects the legal community's recognition that being a good lawyer requires more than analytical ability.  For example, success as a lawyer requires the ability to communicate analysis with good writing or presentation skills, under time pressure, and in high stress situations. Lawyers increasingly need to work collaboratively. The ability to listen is critical, but often lacking.

The new test is a positive step forward.

D. Mark Jackson

Distracting Ourselves to Death

Bryan Appleyard, after reviewing several books on the issue, argues we are distracting ourselves to death:

The opposite of attention is distraction, an unnatural condition and one that, as Meyer discovered in 1995, kills. Now he is convinced that chronic, long-term distraction is as dangerous as cigarette smoking. In particular, there is the great myth of multitasking. No human being, he says, can effectively write an e-mail and speak on the telephone. Both activities use language and the language channel in the brain can’t cope. Multitaskers fool themselves by rapidly switching attention and, as a result, their output deteriorates.

....

Chronic distraction, from which we all now suffer, kills you more slowly. Meyer says there is evidence that people in chronically distracted jobs are, in early middle age, appearing with the same symptoms of burn-out as air traffic controllers. They might have stress-related diseases, even irreversible brain damage. But the damage is not caused by overwork, it’s caused by multiple distracted work. One American study found that interruptions take up 2.1 hours of the average knowledge worker’s day. This, it was estimated, cost the US economy $588 billion a year. Yet the rabidly multitasking distractee is seen as some kind of social and economic ideal.

On the other hand, Mark Chandler, General Counsel for Cisco Systems, recounted this funny story last year (to great positive reception):

Some of you may know Dick Gross, a mathematician who is Dean of Harvard College. I once heard him tell a group of parents that if they want to communicate with college-age kids, they better learn Instant Messaging. He told of coming into his 16 year old son’s room while the son was doing homework, and finding five IM conversations going at once on the computer. He asked, “How can you get work done when you have five conversations going?” His son answered, “Dad, you don’t understand, this is how we communicate. For us, IM is like email was when you were a kid.” I must ask, “If five conversations are open at once, how do you bill the time?”

The increase in easily accessible information has certainly made some aspects of law practice more efficient. Finding documents and up to date information on a case can be pretty easy. But the constant distraction of email, phone calls, and other inputs, distracts lawyers from sustained thought. Two hours dealing with your email inbox adds little value.  But two hours --uninterrupted --  can improve a brief remarkably.

And distractions make the lawyer's job stressful.

One of the biggest challenges facing lawyers is using information sharing tools, while still enjoying time for concentrated thinking. I think we can meet this challenge. More to come on how to do this.

D. Mark Jackson

The End Is Near

Is the legal field about to undergo a radical transformation?   Richard Susskind says so. D. Mark Jackson

Respect for Associates

Ben W. Heineman, Jr., and David B. Wilkins pen a must read article in the American Lawyer entitled "The Lost Generation?"  The authors present a compelling argument as to why, despite ever increasing associate salaries at big firms, retention rates are plummeting.  Among the factors they cite:

• Too much drudge work
• Large teams and too little individual responsibility
• Little opportunity to see the big picture
• Inadequate time for communication between partners and associates
• Unwillingness of corporate clients to take risks

What caught my eye, however, was this observation:

The answer is not late-night dinners from The Palm on silver servers. It is a stimulating, mind-expanding experience at the beginning of their professional careers that treats associates as adults, gives them responsibility, and, most of all, communicates the intellectual and practical excitement of confronting the significant issues that the best partners enjoy.

At least according to these authors, it sounds like what may be missing is "Respect for People."  In other words, rather than being cultivated as professionals, associates are treated primarily as variables in the billable hours equation. Respect for people, of course is the fundamental philosophical foundation for any lean enterprise.

Solutions? The authors recommend loaning of associates to corporate clients and public agencies, more time for pro bono work, and more focus on professional development.

I would add that firms should ask themselves some uncomfortable questions. On important matters, how often are junior members given the opportunity to contribute meaningfully? How often are they part of transforming internal business processes?

While law practice has the potential for drudgery, it's no worse than in manufacturing? If Toyota can retain line workers for their entire careers, surely law firms can find a way to keep associates satisfied and productive too.

D. Mark Jackson

Lean Writing

Can lean improve your writing?  Let's take two essential lean concepts and see how they apply.

Minimize Waste

Eliminating unnecessary words makes for good writing. Ask any editor or writing coach. Removing unneeded words is reducing waste in your writing.

Think of editing as a form of kaizen, the process of continuous improvement.

Respect for People

How often do litigators exchange briefs or letters filled with invective and hyperbole?  By all accounts, judges hate this. This style of writing may satisfy the emotional needs of lawyers and their clients, but it rarely serves their interests. Yet many lawyers persist in thinking that diligence requires them to be mean and disrespectful. As Gary Kinder teaches, judges want to be fair and are more likely to be persuaded by your writing if it is fair too. Therefore, showing respect for your adversaries and their lawyers makes you a better advocate.

D. Mark Jackson