In-House Counsel

To manage a legal department is to wrestle with ?wicked problems?

By Rees Morrison

The Rotman Mag., Winter 2009 is devoted to ?wicked problems.? One article (at 19) sets out six characteristics of wicked problems, all of which together suggest that for managers of sizeable internal legal functions wicked problems abound.

?You don't understand the problem until you have developed a solution. Every solution that is offered exposes new aspects of the problem, requiring further adjustments to the potential solutions. There is no definitive statement of ?the problem?; these problems are ill structured and feature an evolving set of interlocking issues and constraints.? Just think of the challenge of ?reducing legal expenses.?

?There is no stopping rule. Since there is no definitive ?the problem,? the results are no definitive ?the solution.? The problem-solving process ends when you run out of resources such as time, money or energy, not an optimal solution emerges.? Figuring out best practices comes to mind as an example (See my post of March 20, 2009: seven reasons why I question best practices.).

?Solutions are not right or wrong. They are simply ?better/worse? or ?good enough/not good enough.? The determination of solution quality is not objective and cannot be derived from following a formula.? Most general counsel can hope for little more than ?satisficing,? a term cognitive scientists use to describe the tradeoffs we make when we think (See my post of Sept. 9, 2008: intractable problem of clients? appropriate use of in-house lawyers; and June 24, 2007: intractable of career paths.).

?Each is essentially unique and novel. No two wicked problems are alike, and the solutions to them will always be custom designed and fitted. Over time we can acquire wisdom and experience about the approach to wicked problems, but one is always a beginner in the specifics of the new wicked problem.? No two law departments are alike, so their challenges are not alike and all solutions are hand-crafted.

Every solution is a ?one-shot operation.? This is the ?Catch-22? of wicked problems: you can't learn about the problem without trying solutions, but every solution is expensive and has lasting consequences that may spawn new wicked problems.? Managing lawyers can never anticipate all the ripples from an operational decision (See my post of Aug. 1, 2006: second-order consequences; Aug. 28, 2005: unintended consequences; Dec. 17, 2006: all practices have pros and cons; Aug. 22, 2006: the economics of error; July 10, 2007: well-intentioned actions that bring punishment and eight examples; July 28, 2008: decision map helps person think about possible consequences; Aug. 29, 2008: unanticipated effects if general counsel improve their management skills; and Sept. 9, 2008: opportunity costs, an economist?s way to describe tradeoffs.).

There is no given alternative solution. ?A host of potential solutions may be devised, but another host are never even thought of. Thus it is a matter of creativity to devise potential solutions, and a matter of judgement to determine which should be pursued and implemented.?

Full post as published by Law Department Management on May 28, 2009 (boomark / email).