(Not Quite) Best Practices

When are "Best Practices" Not Best Practices? That's the question addressed in a recent Harvard Business blog post by Scott Anthony. In this post he makes the valid point that there are very few best practices that work 100% of the time. In his view, the efficacy of best practices is situational:

For just about any business challenge, there really is no such thing as absolute best practices. Best practices are very dependent on the specific challenge, context, and capabilities of the company.

Before blindly copying a competitor’s best practice, or assuming a historic best practice will continue to provide positive results, ask three questions:

• Are market circumstances similar?
• Are corporate contexts similar?
• Is the practice “modular,” with few interactions with other corporate systems?

If the answers to these questions are yes, then mimicking best practice can succeed. If the answer to any of these questions are no, think twice. Following so-called best practice might lead to disappointing results.

In the context of law firm knowledge management, there may be some additional issues we have to face. Best practices within a law firm can cover content (e.g., model documents) and process (e.g., electronic discovery procedures). But arriving at best practices regarding content requires a different kind of effort than that required for a recommended process.

With respect to process-related best practices, gathering and analyzing a large cross-section of firm experience should reveal what behavior is more likely than not to lead to success (or avoid disaster). In this case, the task is primarily to identify and describe those preferred behaviors in writing, and then train colleagues to follow them.

When it comes to content-related best practices, however, success depends largely on the ability of the lawyer to comprehend a business proposal and capture it in the form of a legally-enforceable agreement. A best practices guide can help the lawyer with the analytical and mechanical process of preparing that agreement, but it generally cannot dictate the final words. Those words are almost entirely dependent on the details of the specific business deal. So the challenge of content-focused best practices is to reduce the number of moving parts, to limit the areas in which the lawyer must exercise drafting discretion. In practice this means ensuring you have bullet-proof boilerplate language, augmented by a large annotated clause library on which the lawyer can draw in lieu of drafting from scratch.

But here's an additional wrinkle: once you know the right way to do electronic discovery or a due diligence review, for example, that guidance holds until there is a major change in technology or the allocation of risks. By contrast, best practices with respect to content are in a constant state of flux. Market conditions change and have an immediate impact on content. Equally pressing are refinements arising from changes in case law and legislation. In this context, creating and maintaining content-related best practices requires constant vigilance and consistent follow through. And now we're talking real money.

In an earlier discussion among large law firm KM managers, we bemoaned the paucity of written best practices in most firms. Given the costs and complications of creating and maintaining content-related best practices, perhaps this lack is completely understandable.