Feature

posted 9 Mar 2004 in Volume 6 Issue 9

Knowledge-management tools in legal practice

There are many knowledge-management (KM) tools, all of which could not usefully be compiled into a comprehensive list. However, Karen Battersby, course director of the know-how postgraduate programme at Nottingham Law School, explores some of the most common KM tools used in legal practice and examines issues relating to their use.

There is no right answer as to which KM tools and processes to use in any particular situation. There are many ways to manage know-how and what will practically work depends on what fits the KM strategy and culture of the firm or department involved, the nature of the knowledge to be managed, and practical issues, such as resources.

1. The knowledge-management cycle

To identify the appropriate use of KM tools in practice, it is useful first to break down the elements and objectives of KM.

Managing knowledge aims at one or more of the following activities, which interact in a cycle for the generation or capture, sharing, use and improvement of knowledge.

The first objective is to find, create or capture the required knowledge. This may include internal library resources or knowledge from external service providers. Once identified and acquired, the knowledge must then be organised and stored in a way that preserves it for future use. Its currency also needs to be maintained if it is to remain useful. This may involve updating the stored knowledge or ‘weeding out’ out-of-date know-how.

Users need to be given access to the stored knowledge, which can be directly disseminated to users (a ‘push’ strategy) or they can be given access to locate it themselves (a ‘pull’ strategy). Finally, making the knowledge available will be pointless unless it is used by members of the firm. In using the knowledge, members may adapt or improve it, and should be encouraged to do so. Such applied, adapted or improved knowledge should ideally fall back within the KM cycle for use by others.

Let us now look in more detail at each of the activities in the KM cycle and the tools appropriate for the different activities.

2. Find/create/capture

There are various methods by which the required knowledge can be located and captured (if it already exists) or created if it does not. These methods vary according to whether the knowledge is explicit (recorded in documentary form) or tacit (unarticulated knowledge in people’s heads). With tacit knowledge, the main activity may lie in locating it and then enabling individuals to share it direct. For explicit knowledge, the focus is more likely to be on creation or capture, with the aim of storage in a repository.

In legal practice, there has traditionally been a focus on explicit knowledge, so we start with an examination of well-known tools for the creation and capture of such knowledge.

2.1 Precedents

Precedents are standard-form legal documents for use in fee-earning work where the provisions do not vary greatly between deals, or require minimal adaptation. The benefit of precedents for appropriate work types is that fee earners can use them to avoid ‘reinventing the wheel’ every time they do a new job. Precedents also ensure consistency of quality, style and approach among fee earners carrying out the work type involved.

Because precedents are useful where there is an element of repetition in the documents concerned, they are most frequently used for work where unique knowledge is not required for each job – for example, in property and corporate work. There may also be industry-standard documentation available for certain work types, for example, JCT contracts for construction work.

Precedents are often created specifically by the firm for use in the work type concerned and this can be a key activity of professional support lawyers. However, while many firms have in the past created their own precedents, there are now many externally produced precedent banks, such as Butterworths and PLC, most of which are available online. If precedents are a necessary tool for a work type, the decision now needs to be taken whether to make or buy this form of knowledge.

If the decision is to make it, there are various issues to be considered around the creation of precedents:

What is the starting point for the precedents? Are there existing informal precedents, precedent books, or a combination of both that fee earners use?
What type of style, level of detail and drafting approach is to be taken in the precedents? For example, the precedents could incorporate optional variations of different provisions (but this may make them difficult to adapt and use). The drafting approach may be a balanced ‘middle ground’ between the parties to the document, or precedents can be biased in favour of one party or the other, and several variations of a precedent could be produced for the same transaction;
What approval/vetting procedures are needed before the precedents are made available for fee earners’ use? If precedents are drafted by professional support lawyers, approval of their drafting will usually be sought from the fee earners who will be expected to use them. This is both to ensure that the drafting reflects issues that the practitioners come across in practice, and also to give confidence to fee earners that the precedents have the seal of approval of the practising specialists. The people whose approval is sought will be busy fee earners who may have little time to devote to such activities. This can lead to a frustrating process where precedents are not released in a timely fashion due to hold-ups in the approval process;
What peripheral documents, if any, are needed? While fee earners no longer have to draft the precedent provisions themselves, they may need guidance. This may be in the form of drafting notes that reflect the firm’s stance on particular issues;
How are the precedents to be maintained? Review systems are needed to keep them up-to-date and to ensure that they reflect issues that arise in practice. This will involve getting busy fee earners to give feedback on their experiences of using the precedents in practice.

2.2 Work product

Aside from specifically created explicit knowledge, such as precedents, much explicit knowledge already exists within the firm in the form of work product. This is work that fee earners have already carried out, such as prepared agreements, advice notes and research memoranda. This can be reused by others. Work product may be generated externally as well as internally, for example, counsel’s opinions prepared for a client. However, whether such items can be reused by others in the firm will depend on who owns the copyright in them. The Law Society has recently issued guidelines on the use of third-party documents in law-firm knowledge repositories.

To use work product as a KM tool, it must first be identified and collected. There are various methods for this:

Physical collection methods, including placing trays in fee-earning departments where fee earners can deposit useful material;
Virtual collection through IT systems so that fee earners can submit drafts of their work electronically to a knowledge repository. Note that if such submissions feed directly into an electronic knowledge repository, without a vetting process, the repository may become full of repetitive or poor quality material;
Social collection, for example, by having PSLs or fee earners acting as knowledge collectors who meet their colleagues at regular intervals to identify and obtain useful work product from them. This form of facilitated collection can be the most successful in generating know-how contributions from busy fee earners who might not otherwise set aside time for it;
Procedural collection, whereby there is a process in which a file cannot be closed unless any relevant know-how has been extracted from it first.

Once collected, a law firm will have to decide what use will be made of the know-how. Will the repository only have best-practice work product, which has been reviewed after collection to assure its correctness and quality? Alternatively, will it have a general work product, which is not so vetted but is placed in the repository as submitted by the fee earner? If the former approach is taken, then a vetting process will need to be established, which may suffer from the same time delays as approval processes for precedents. If the latter approach is taken, the quality of the know-how cannot be guaranteed and fee earners will need to know that it is to be used with caution.

Whatever the categorisation of work product, it will need to go through a process of sanitisation, that is, removal of specific client details to avoid breach of client confidentiality and conflict issues. Work product may not be useful for others in practice if they do not know (in general terms) the context in which it was used and how the points within it came about.

To overcome this, it is often necessary to combine work product with the tacit knowledge of its creator, whose details should accompany it in the repository so that those using it can get in touch with the originator to understand the context and detail.

2.3 Precedents or work product?

While many firms run both precedent and work-product systems, this can cause confusion for users as to which to use if there are tools of both types covering the same subject areas. Sometimes lawyers see the choice between precedents and work product as absolute: it is either one or the other tool that should be used as a basis for future work. In fact, the two can and, if appropriate, should be combined. If a work type involves the use of precedents, work product from that work (which may be created out of standard-form precedents or separately) can be used to inform and improve the development of those precedents.

Another alternative is to capture work product as examples of the use of precedents in specific situations. Hence, a generic outsourcing agreement may be a precedent, but examples of its adaptation for the outsourcing of different types of services may be stored with the precedent. In this case, the fee earners will be able to use both the generic and specific forms.

2.4 ‘How to’ guides

These are a further development of the combination of precedents with work product and other internal and external know-how to provide a comprehensive guide for fee earners on how to carry out a particular transaction from start to finish. Also known as ‘transaction manuals’, they comprise not only the precedents, but also checklists, practice notes (with the relevant law relating to the transaction), sample letters and, in appropriate cases, project methodologies for the transaction concerned. They can be most suitable for use in work where there is little variation between transactions. To integrate the various elements of knowledge required, including external sources, such guides are often most effectively delivered through an intranet application, which allows links between internal and external sources of knowledge.

2.5 Internal and external current awareness

The required knowledge may be raw legal knowledge to keep fee earners up-to-date with the current state of the law in their area. Current awareness is likely to be a feature of all legal work types, but can be a major KM tool in areas subject to rapid legislative development, for example, employment law.

There are many external sources of such information, including Lawtel and Westlaw, as well as legal textbooks. These can be made available to fee earners through the library. Additionally, internal current awareness can be prepared by professional support lawyers or fee earners. A benefit of internal firm updates can be that the raw legal information is tailored to specific issues affecting the firm’s departments and work types. Current-awareness bulletins prepared for clients, including articles written by firm members for external publications, are also a valuable KM tool to capture for internal use.

An issue with providing update information is how internal or external resources should be used and who prepares the internal bulletins. There can be overlap between library and professional-support functions in this area and the two functions need to work collaboratively. Also, information overload, which discourages fee earners from using know-how, can be a problem if fee earners receive too many or duplicative briefings.

2.6 Directories and databases

With tacit knowledge, the aim is not to capture it, but to locate it so that it can be shared. A KM tool to locate tacit knowledge is the skills directory or ‘yellow page’, which points to knowledge, but does not contain it. It identifies individuals and their areas of specialist expertise so that others can contact them when they require that knowledge. Such directories can be used to locate the firm’s external as well as internal knowledge, for example, directories of counsel used by litigators. Similarly, databases, which do contain information, can be created in respect of projects carried out by departments for use in marketing to attract new work (credentials databases); or to hold client information (for client-relationship-management purposes); or financial information (a firm could capture details of realised fees on certain types of transaction, which would then help with estimating future fees for such work types).

Creating skills directories can, however, be problematic because there is a high degree of subjectivity in them. First, how is the location of the knowledge and skills to be ascertained? The information may need to come from fee earners themselves, but people may claim to have specialist knowledge in areas in which they do not; how is specialist knowledge and experience to be judged anyway? Decisions also need to be made about the type of data that will be gathered: is it just legal specialisation, industry experience, membership of groups and associations, language skills, or more?

The necessary information may not only be available from fee earners, but also from other functions in the firm. For example, the HR department will have information about people’s skills and experience from the recruitment process, while the marketing department may have captured information about projects in which fee earners have been involved for marketing purposes. Working collaboratively with these departments can enhance the quality of the directory. Keeping the directory up-to-date can be a difficult ongoing task as people join or leave the firm and develop in terms of skills and experience. Some system will need to be put in place, ideally involving other relevant departments, to keep the details current.

2.7 Lessons learnt

Tacit knowledge of a lawyer’s experience of their work can be captured at meetings to discuss lessons learnt from the projects they have undertaken. Such project reviews can be carried out during and after projects and can involve the client as a quality control and client-relationship-management tool. To obtain useful knowledge from the exercise, it is important that the lessons are discussed freely without an environment of blame. Lessons should also be recorded, with a culture of willingness to apply them in future.

3. Organise/store/maintain

Captured explicit know-how needs to be stored and organised to manage the content and make it accessible to users. Storage can be in paper form, but mostly there are IT applications that serve as electronic repositories and enable the knowledge to be accessed throughout the firm.

Organisation of the knowledge requires some form of structured categorisation of know-how, which enables users to locate the knowledge they require. For example, a common method is to categorise know-how according to subject matter with a hierarchical subject-matter index that users can browse to locate required know-how. Further identifiers can be added by separately ‘key wording’ the know-how with descriptive terms that users search against when using a search engine. Such categorisation and search terms generally form part of a taxonomy, which is a structured set of categories for classifying knowledge.

Taxonomies need to use consistent terms, which are relevant to the subject matter and understood by the users. In setting up taxonomies, processes need to be established to ensure the terms used that are meaningful to fee earners (if an internal taxonomy is being established) or to train users in an external taxonomy. The taxonomy should also be kept under constant revision to reflect fee earners’ changing usage of common terms.

In addition to a taxonomy and to further speed up the searching process, brief details of the know-how can be indicated on the system, which users can browse to gain an indication of what the material covers without having to read through it all. There also needs to be indications in the repository of certain key facts about the know-how stored in it, such as the date of its creation or review (so that fee earners know the date from which they may need to check for further legal developments in the subject matter), the contributor and, if relevant, the validator so that fee earners can contact those people to understand the context of the know-how. (Fee earners also judge the quality of material by its provenance. For example, they may assume it is more reliable if it is from a senior fee earner.)

Material in the repository needs to be maintained to keep it relevant and current. This may involve not only updating material, but also weeding out obsolete material. The level of maintenance grows with the size of the repository and systems need to be put in place to ensure a regular review of material if it is to remain useful to fee earners.

4. Give access/share/disseminate

Once knowledge is stored or located (in the case of tacit knowledge) it can either be left to seekers of that knowledge to access it themselves as and when they require it (the ‘pull’ process), or it can be ‘pushed’ out to them through processes of active dissemination. For example, internal or external current-awareness bulletins can be actively disseminated to fee earners to make them aware of the latest developments in their areas of practice.

Access to tacit knowledge generally requires some personal contact to share the knowledge and this can be arranged in various ways, as described below.

4.1 Know-how meetings/knowledge fairs

Bringing people together to specifically share know-how can be one of the most effective methods of transferring tacit knowledge. This can be particularly useful for expertise and experience-based work types where there is little codified knowledge. Know-how exchanges can be incorporated into regular team meetings or can be separate meetings specifically designed for tacit knowledge sharing. As such, the meeting may need to be facilitated by somebody like a professional support lawyer so that there are clear objectives and knowledge sharing is achieved.

A variation on having know-how meetings for specific groups can be knowledge fairs. This is where groups of fee earners who might not otherwise meet, perhaps because they are in different offices or departments, are brought together to meet each other and gain an understanding of their areas of expertise.

4.2 Communities of practice (COPs)

These are an unusual type of KM tool in that they don’t need to be specifically created for the job, but are, nevertheless, a very effective method of sharing tacit knowledge between individuals. COPs are naturally occurring groups of practitioners who come together informally to share know-how in their specialist subject area. The members of such communities are motivated to share knowledge voluntarily though their mutual identity and areas of interest. Any active facilitation or interference may harm the voluntary nature of the community and it is generally better to leave such groups to ‘manage’ themselves if they are an effective forum for knowledge sharing. If such groups exist within a firm, the KM value of them can be realised by supporting and sponsoring them so that members continue to share their knowledge direct.

4.3 Discussion forums

Electronic discussion forums can be useful where people are unable to share tacit knowledge face-to-face. Forums enable fee-earners to post questions to colleagues and for all involved to share in the replies. The responses to questions can be further codified into a database of group knowledge on issues raised. While knowledge sharing electronically may not be as rich as face-to-face contact, it can nevertheless serve to connect people who would not otherwise meet.

In addition to group knowledge-sharing exercises, there are other well known techniques for enhancing individual knowledge.

4.4 Personal development

Personal-development initiatives, such as training programmes, involve the transfer of knowledge to individuals and there are consequently overlaps between the know-how and training functions in a firm. Professional support lawyers are often involved in delivery of training on technical subject areas due to their particular expertise.

More individualised knowledge sharing can be effected through mentoring and coaching programmes where individual knowledge and experience is shared on a regular basis between two individuals. Usually, a more experienced lawyer will take a less experienced lawyer under their wing and share experiences with them on issues that arise generally. Alternatively, they may help the less experienced person achieve certain goals.

5. Use/adapt/improve

All these described activities in the knowledge-management cycle will be to no avail if fee earners do not use the available knowledge in their work. While use will depend on factors, such as the firm’s culture and individual motivation, there are tools, which can assist people in their use of knowledge.

5.1 Training

A certain amount of formal training will be necessary for users in certain aspects of KM activity, for example, in how to use KM IT systems and search engines. Written reference guidance on taxonomies to which users can regularly refer is also necessary. Training can also be provided in the various knowledge sources the firm has. For example, fee earners using precedents that they have not themselves created need to understand the rationale behind the drafting and the firm’s stance on negotiating points. Some argue that the use of precedents ‘de-skills’ lawyers who no longer get the opportunity to draft and understand standard legal provisions themselves. This understanding can be gained through training sessions on the precedents (which themselves can be useful sources of know-how as lawyers discuss the points within provisions). Simulation exercises in the use and negotiation of precedents will enable fee earners to experience using them in the manner they will in practice. It is also important for those skilled in the use of systems, including the professional support lawyers and librarians, to be on hand to assist fee earners as they learn to use the tools in practice.

5.2 Embedding in work procedures

Lawyers can also be encouraged to use knowledge resources if these are embedded into the processes for carrying out their work. Thus, a ‘how to’ guide could be embedded as the standard procedure for carrying out efficiency type work, or a precedent could be opened automatically in the IT system when someone wants to create a new document. To assess where effective knowledge inputs can be made in a particular type of work, it may be necessary to carry a process analysis and re-engineering exercise to break down the work process into its constituent elements and analyse where value can be added or the process streamlined.

The use of knowledge is dynamic in that new work product or improvement of the underlying know-how is likely to result. This also needs to be captured to feed into the KM system. It is useful to think of KM tools as producing constantly evolving knowledge. The initial approval processes of precedents and work product should be thought of only as the start of an ongoing process and more useful feedback is likely to be gained as these tools are used in practice.

6. Conclusion

Use of KM tools needs to be flexible to adapt to the changing needs and requirements of evolving know-how. Very often, one tool may be implemented initially, but as the body of know-how grows, there may be need and scope to develop that tool by combining it with others. For instance, a firm may start by developing a precedent bank, but may then move to collecting work-product examples of the use of those precedents. Finally, they may have enough know-how to develop ‘how to’ guides on particular work types utilising the precedents, work product and product methodologies associated with that work.

So, KM tools should be kept under regular review to ensure that they continue to bring value to the firm.

Copyright Karen Battersby, Nottingham Law School, 2004

Karen Battersby is course director of the postgraduate know-how programme at Nottingham Law School. She can be contacted at: karen@dbattersby.fsnet.co.uk