Moving KM from the sidelines

Law-firm knowledge management placed squarely in the workflow of a deal or case can play a powerful role improving the practice of law, far more so than traditional resouerces, such as repositories of model and sample-work product, deal or case profiles and expertise profiles, which are useful but difficult to populate and market. By Risa Schwartz

When law-firm knowledge management (KM) was a nascent initiative, firms adopted the name ‘KM’ for the groups charged with implementing these initiatives, albeit sometimes reluctantly. KM was disparaged as the catchphrase of the day, but there just wasn’t another label that people would recognise as readily. Problem was, even after adopting the name KM, most lawyers still didn’t know what it meant; they only knew it was a new administrative group on the periphery of the law practice, which functioned outside the scope of an lawyer’s typical workflow and well below his or her radar.

The geographic location of knowledge staff in the early years of law firm KM underscored its disconnect from the practice of law. In many law firms, KM departments were housed with administrative staff, separated by floors or wings or even buildings, from their intended primary user, the lawyers. There was minimal interaction or participation in practice-group meetings.

These and other factors reinforced the separation of early law-firm KM efforts from the practice of law and the workflow of lawyers handling a deal or case. Born on the sidelines, the KM function often struggled to inject value into core business processes, while it
was positioned far from the centre of the business.

If you build it, they will come... maybe
Law firm KM traditionally focused on creating, populating and marketing repositories of model and sample work product, deal and case descriptions, and expertise profiles. Early KM strategy was to reach for low-hanging fruit, like document collections, which required only collation and publication of models and samples. Lawyers associated KM with document-centric projects, such as model repositories, and learned to expect occasional requests from KM staff to contribute a good document for a shared repository, with no expectation or responsibility to maintain the document’s currency. An e-mail with an attached sample sent to a KM staffer, along with the brief interaction between practising lawyer and KM, ended. If there was detachment on the data-collection side, similarly, that was also evident on the data-usage side; the repository was not high on the lawyer’s radar while he or she was working on a deal or case. Occasionally, the lawyer would remember to visit the collection if there was an immediate need and gap in their own document stash. These repositories were nice-to-haves for these individuals, but ancillary to their workflow.

When the repositories grew stale, which they did fairly quickly, lawyers lost confidence that the documents had currency. These early repositories went from a ‘nice to have’ to a ‘not so nice to use’ since there was no infrastructure to update a contributed sample. The programmer, paralegal or librarian responsible for collecting and publishing content could not revise, for example, a form of directors and officers questionnaire for an initial public offering to reflect new executive compensation rules, and the lawyers did not have the time or incentive to stop their work to update a document. Shortly after they were launched, the document collections were perceived in a positive light – they were a bit more organised than a firm’s document management system (DMS) – but not better than the DMS with respect to knowing if the document was vetted and up-to-date. The risks for a lawyer ‘dumpster diving’ in the DMS, looking for a document to use as a starting point, were not much lower with a KM repository that was neither replenished nor updated.

Early law-firm KM also focused on databases housing deal or case profiles and documents. These were useful resources but incomplete – too difficult to collect all the mergers and acquisitions handled by the firm, or meaningful data points describing the deal (indemnification cap and escrow, for example). And they were not designed to offer the lawyer tools to make the workflow more efficient while handling the deal or case. The databases were useful to find a document (for example, you could find a motion from a case in the second circuit to use as a starting point or a legal opinion from a particular law firm to assist in current negotiations), but not built to help a lawyer in the throes of handling a deal or case.

As a result of these early efforts built from the sidelines by staff unfamiliar with a transactional or litigation lawyer’s business process, the hard-earned lesson learnt by early KM staff was ‘if you build it, they won’t necessarily come’. These early deal or case databases were built without first identifying the workflow or business processes, pain points and proposed efficiencies for the lawyers or administrative staff like marketing or finance. They were nice-to-haves, not must-haves, and remained on the periphery.

Working from the sidelines wasn’t creating the efficiencies law firm KM wanted; the art of practising law requires collaboration during the workflow of a deal or case, but the tools created didn’t facilitate collaboration. The repositories of past work provided useful samples, sometimes an answer to practice or referral-related questions, but did not foster communication during the deal or case. So, the next generation of KM tools were designed to help lawyers better collaborate while doing their present work, not just tap into repositories of past work.

Nice-to-haves to must-haves, almost
KM leaders recognised that it could play a powerful role in improving the practice of law by inserting tools squarely into the workflow of each deal or case. The goal was to identify the normal business processes for transactional or litigation lawyers, identify ways to make those processes more efficient, improve communication and collaboration, then propose solutions tied to the workflow, which did not require the lawyer to remember to use the tool and did not require the KM staff to extensively market it or train lawyers before they could easily use it. The goal was for these tools to market themselves because they offered so many efficiencies or ‘goodies’. The hope was that lawyers would flock to these tools rather than KM staff chasing after them to use the technology. The goal was to make the tools so simple and intuitive that little or no training was required. Below are a few examples of KM resources that have moved a little closer to the centre of the business process for a lawyer handling a deal or case.

Give me Google
Early law-firm KM built disparate resources, each with its own point of entry. Lawyers had to remember the many different spots to search for a document. For example, a lawyer looking for a legal opinion for a venture-capital financing by a particular firm needed to search in:

1. The transactional database housing past financings and documents;
2. The DMS;
3. For a form of legal opinion, the document collection housing venture-capital financing documents.

A howl rose from KM’s internal lawyers and clients, ‘give me Google’, or at least something Google-like that could search everything (see Box).

Re-using the Q&A
Another example of moving KM tools more squarely into the workflow of lawyers handling a deal or case is facilitating the normal question and answer (Q&A) e-mail traffic regarding practice or referral-related questions (for example, if you have represented a client acquiring a French company, you can refer a patent prosecution lawyer who has domain expertise in transaction-based internet marketplaces and e-commerce) and the re-use of the Q&A. The value of that re-use is so high that many law firms have dedicated KM staff who follow up with the person asking the question and then publish the Q&As, or forward them in periodic e-mail communications. Some firms manually enter the Q&A into searchable databases. A few firms have automated the question asking and re-use by buying or building products to forward and capture questions and answers. While browser-based systems are very useful, some firms have chosen a different route, building Q&A systems that reside in e-mail – an example of KM staff identifying the existing business process (lawyers live in e-mail and ask their peers for information via this). The e-mail based Q&A system is a tool that sits squarely in the heart of that e-mail workflow, is not something that an lawyer has to remember to use or get trained to use, or which KM must market heavily. Here, KM has moved away from the sidelines and a bit closer to the centre of lawyer workflow.

Forms are good, annotations/automation is better
As noted above, model or sample-work product repositories are useful, but ancillary to how a lawyer works. For example, a lawyer gets a call from a client ready to move forward with a venture-capital financing round – where do they turn first? Probably to the set of documents from the last similar deal, rather than the KM forms repository. But if those forms are richly annotated, provide optional provisions and explanations about when to choose one alternate provision over another, the KM form, or the KM annotations to that form, becomes the go-to-item, and the repository becomes an effective KM resource, which addresses a particular business need. At many firms, document-usage statistics bear out the high value of annotations to forms.

Document automation is another KM resource that brings the somewhat ancillary form repositories into the heart of the workflow. A speedy response to client requests is often identified as a critical business goal. For a private company starting a financing, the lawyer wants to send the first set of financing documents to the client quickly. The model repositories don’t offer speed, but document-automation tools using the forms from those repositories do. If document automation seems daunting, remember the workflow driver – speed. Elaborate decision-tree software for document automation is nice, but there is no need to sap KM staff time to customise when end-users don’t even need that complexity. Buy or build tools that address the need without offering bells and whistles, which don’t get you closer to the core workflow.

From pitch to press release – deal and case databases
First-generation KM deal or case databases were built or bought, then customised without the benefit of end users participating in the process. Second-generation deal or case database, KM-lead projects started to bring all the players to the table from project inception. For example, members, associates, marketing, finance, KM, IT and administrative-support staff. Successful KM-lead project teams had members that described their business process and pain points, and proposed solutions that were reviewed with all constituents to confirm they made sense for the members’ workflow. Associates, marketing, finance and KM staff were asked to do the same. For example, members said we needed pitch materials that describe individual, practice group and firm experience on a particular kind of deal or case and we needed to set client expectations on fees, or be able to review comparable fees for past deals or cases. Associates said they needed documents from similar deals or cases to provide efficient, high-quality service to the client. While marketing and KM required data on past deals and cases for business development. To respond to these workflow requirements, firms began to create databases that leveraged the wealth of data that most already kept – for example, fee and hour information, client and matter-related data or timekeeper data. KM designed databases with these project teams to help manage a deal or case from pitch to press release.

If these databases of deals at the end of their lifecycle didn’t sit squarely in the workflow, they were a little closer than first-generation deal and case databases, and their successful uses included:

Branding – law firms only appear in Thomson Financial or Bloomberg’s M&A league tables if there’s a KM tool tracking and housing deals with sufficient data
to meet the reporting criteria;
Business development – deal databases that leverage the firm’s matter and timekeeper information enable marketing to prepare targeted pitch materials (the firm has done
‘x’ number of cross-border life sciences M&As);
Efficient document production – associates quickly locate good samples from similar past deals or cases;
‘What’s market’ – KM staff analyse deal terms and produce trend reports (for example, anti-dilution provision, the liquidation preference, redemption or dividends) enabling lawyers to effectively negotiate deal terms;
Fees – members can set client expectations about fees.

A look to the future
Harnessing the workflow to populate repositories
US law-firm KM staff resources are not vast. Some firms have one person, others have a handful of staff, and a rare few include a professional support lawyer (PSL) among their staff (compared with 75 to 90 PSLs for some large UK firms). KM staff can not be the sole source of deal or case descriptions for databases. In the litigation arena, new KM tools are geared to harness the work of secretaries who manage case files for the litigation practice groups. With a little extra work, they can categorise cases and link to pleadings in online databases, and record other information that makes it easier to find work product, similar matters and internal experts. KM staff are not needed to keep the information flowing. Because it is a normal part of a litigation secretary’s workflow to maintain the
case file, the database is well-populated and maintained.

Harnessing workflow for communication and collaboration
Populating deal databases at the end of a transactional matter’s lifecycle is an arduous task for KM staff and extra duty for the lawyer who has little incentive to provide the deal description or prompt his or her secretary to forward the documents to KM. Lawyers understand what information is available to be pulled out of a well-populated database (for example, fees, sample documents, pitch materials, lawyers who’ve worked on similar deals), but these are a nice-to-have items. Alone, those features don’t generate the willingness to push the data towards KM – complete deal profiles. Knowledge management is now moving toward transactional databases for deals at the beginning of the matter lifecycle. Databases where the corporate lawyers on a public or post-term sheet-phase merger can see who the licensing, employment law or real-estate lawyers also assigned to the deal are. They can then call them, send e-mails to the working group or individuals on the working group with one click, add lawyers or paralegals to a working group, view hours billed, create fully-formatted working-group lists, see all their active matters, search for pre-term sheet deals in the pipeline by opposing counsel, banker, and so on. The ease with which attorneys on a deal can communicate and collaborate with each other and the efficiencies offered, such as automatically-created working- group lists that leverage existing firm databases with contact information, may generate sufficient interest for lawyers and secretaries to enter and update their own deals in these nascent KM tools.

These new initiatives moving KM from the sidelines to the centre of the firm, in an effort to improve the practice of law, increase efficiency, provide high-quality client service and facilitate communication and collaboration during the workflow of a deal or case, require a few changes to traditional KM staffing resources and strategies. KM staff now include practising lawyers in addition to the invaluable programmers, paralegals and librarians. They are now embedded in the practice groups, attend or lead practice-group meetings, work with practice-group heads, and collaborate with all key players before proposing or designing a resource. KM staff today have the expertise and mandate from lawyer management to design processes that harness existing workflows and offer tools that improve the practice of law. The continuing journey from the sidelines to the centre of the business is a fascinating and challenging one for law-firm KM.

[Box 1] Enterprise search engines – context is everything
The enterprise-search engine offered a good tool for a one-box search across the DMS, KM resources and beyond – timekeeper and client and matter databases, internal directories, biographies, – provided the engine was carefully customised for the law firm. While the search engine is not a KM tool per se, in many firms it was the KM staff who were called upon to customise the search functionality to match the business needs of their end-users. Customisation included:

Results weighted to first pull the model forms vetted and maintained by partners involved with KM and KM practice-support lawyers, who were tasked with keeping abreast of changes in the law and regulations and updating published content;
Sortable results in order to show context, such as author, author’s practice group, date drafted, date last revised, how frequently the document been accessed by others. For example, a user searching for a sample OEM agreement may want to start with those authored by the firm’s licensing group versus lawyers in other groups who happened to draft an occasional OEM agreement;
Document numbers – a user might use the search to determine who is the firm’s internal expert on regulation FD, therefore search results are often designed so you can see who has authored how many documents;
Highlighted search terms in results – users can see whether the document hit is based on exact text matches or concept searching.

Risa Schwartz is a lawyer and manager of KM at Wilson Sonsini Goodrich & Rosati. She can be contacted at rschwartz@wsgr.com or risaschwartz@gmail.com.