In-House Counsel

Seven reasons why I question the infatuation with ?best practices?

By Rees Morrison

I have skewered ?best practices? many times, yet haven?t pulled together all my arguments against them (See my post of March 4, 2008: three thoughts against best practices.). My list of counterpoints now numbers seven.

You can?t duplicate the context of someone else?s practice. All law department practices are embedded in a rich, intermingled context, such that someone else who tries to adopt it cannot really follow suit. If, for instance, you copy how another legal department assigns work, how can you also absorb that company?s circumstances of legal talent, business model, and use of outside counsel (See my post of Nov. 11, 2007: complex contexts; and Nov. 27, 2007: best practices ride roughshod on context.)?

All practices have pros and cons. Trade-offs and opportunity costs lurk everywhere, so it is not possible to proclaim a practice as best (See my post of Feb. 6, 2007: all processes have pros and cons, so no best practices.). For example, many general counsel advocate programs for high potential lawyers, but downsides to those programs exist (See my post of July 29, 2007: high potentials with 10 references.). Many general counsel think that moderate competition among reports is good, but others reject that view (See my post of Oct. 2, 2008: competitiveness with 29 references.).

Even more problematic, the farther out you try to evaluate the overall consequences of a practice, the less sure you can be of the net beneficial effect (See my post Aug. 28, 2005: trade offs when actions are taken; Aug. 1, 2006: second-order consequences; Dec. 17, 2006: all practices have pros and cons; and July 10, 2007: well-intentioned actions that boomerang.).

We can improve every practice. Since any practice can be refined, extended or modified, there can never be an ultimate practice that can?t be improved (See my post of Aug. 22, 2006: Kaizen challenges; July 5, 2006: the Horndal effect; and Nov. 11, 2007: known unknowns and unknown unknowns.). For example, if bill review by the oversight attorney is a best practice, why not have more people review each bill or each of them specialize in a different aspect? Furthermore, external circumstances, which a practice may address, do not stand still.

We lack benchmarks correlated to practices. If we haven?t correlated practices to outcome benchmarks, we can?t prove a best practice. For example, partnering receives praise, but is total legal spending per billion less for those law departments that partner with law firms (See my post of Jan. 14, 2007: casual benchmarking does not disclose practices; and Jan. 13, 2008: benchmark ?worst practices.?)? The absence of empirical research means that most claimed best practices remain untested and undemonstrated.

No one has a panoptic understanding of practices. To claim something is a best practice implies that the claimant is familiar with a wide group of law departments and has compared them objectively on that practice. No one has that comprehensive oversight. Worse, everyone has financial or cognitive biases (See my post of Feb. 6, 2009: no snark in law department management field; Aug. 5, 2007: biased surveys; and March 15, 2009: cognitive traps with 21 references.).

Best-practice pronouncements often rest on value judgments, which are un-provable. At the root, a best practice vouched by someone says more about their value system than about the practice (See my post of May 23, 2008: values with 12 references.). An example might be delegation to paralegals, which in part rests on the a humanistic belief in potential and merit. We enjoy no absolute knowledge, at least if you subscribe to post-modernist perspectives (See my post of Sept. 22, 2008: post-modernist critiques.).

Outcomes aren?t practices. ?Obtain the optimal performance from your staff,? to give one example, is not a best practice, it is an aspiration (See my post of Feb. 22, 2009: action verbs? compared to ?achievement verbs.?). Such platitudes are easy to dispense but impossible to operationalize. A practice can be a best way to get closer to the goal (See my post of Jan. 18, 2007: fortune cookie platitudes.).

Full post as published by Law Department Management on March 20, 2009 (boomark / email).