In-House Counsel

Another thought or three on why I mistrust palaver about ?best practices? (See my post of March 20, 2009: seven objections.).

Best practices give short shrift to context of the legal department that is held out as fostering a best practice, alterable circumstances such as perseverance and the individual champions. More subtly, a law department that adopts a practice brushes away not only malleable context but also given conditions. Size of a company, its corporate history, business conditions, pressures of other executives, talent of individuals are presumed to hold constant for the department that wants to adopt the best practice. Givens can enable or hobble best practices, but are typically ignored by the new adopter.

My second objection to ?best practices? is that we define the boundaries of a practice arbitrarily. If you say that competitive bids are best practice, what about related actions just ?outside? that boundary, such as preference for incumbents or evaluations of the firms once chosen? Or further ?inside? the boundary there are bidders? conferences and multiple-round bids? Where does a ?practice? begin and end?

Third, to evaluate two practices requires a common measure, hence can be done only if the ?ends? are intermediate, serving as means to, and deriving their value from, a more general end. That difficulty of evaluating practices renders very suspect statements that any one practice is optimal.