Top 10 Essential Skills for Lawyers Not Taught in Law Schools

by Bill Meade

2008-08-23

I would like to begin with a proclamation. Everyone in this room today, … is smart. We would not be meeting, otherwise. Because we’re smart, we’ve all learned. We’ve learned about tricks, and analytical models, and corporate politics, and some of us, have even learned about law. What I’d like to talk about today, are some of the things I’ve learned, that I believe are uncommon in law schools, but which I believe can nevertheless help raise the value of attorney work, to a higher level.

I’ve never been to law school, but I have worked for about 12 years with attorneys in 6 areas:
• patent litigation,
• patent generation,
• patent licensing,
• patent sales,
• (legal) business process development, and
• providing translation services between legal people and
• inventors,
• technical mangers,
• senior managers,
• finance people, and sometimes,
• even between corporate and outside counsel

Having a Ph.D. with hard science and soft science minors seems to have equipped me as a cross-disciplinary linguist. And cross-disciplinary linguistics can be very useful for frustrated attorneys.

Example #1: L.S. and the expert witness
So, as you can see, working within and with legal departments has allowed me to watch, experiment with, joke with, and to understand lawyers and more generally the legal culture, in which legal work takes place. My 12 years spent acclimatizing to legal culture has given me a few opinions about how lawyers can do, and be better. In particular, to take advantage of marketing (marketing being the area of my Ph.D.) for themselves and their companies. But, this talk isn’t about an enemy criticizing lawyers.
Instead of an enemy criticizing, think of me as an odd-ball friend with just-might-be-interesting suggestions. I’m going to share 10 ideas that are special to me. Special because beyond being useful, fun, and counter-intuitive. These ideas are recursive. They circle back on me, forcing me to re-learn them in new ways.

I present these ideas in a spirit that is 2 parts seeking and 1 part provocation. I hope that you have already discovered many (But not all!) of these ideas for yourselves. I also hope to makes these ideas can become topics of discussion for a time, in your company’s legal culture. And that by raising these ideas, that I can provoke you to reflect on your company’s legal culture: its strengths and its weaknesses.

The ideas/skills.
• Skill #1: Step back from the problem, see the opportunity. We’ve all heard this! We probably all agree that the statement is true, … at least ex post. That is, after problems have progressed through the 5-i’s of natural knowledge-worker problem solving:

• “irrelevant,”
• “impossible,”
• “infinite-time-and-resources-to-solve,”
• “inefficient,”
and then finally,
• “intuitively obvious” to even the most casual observer
The first thing I’d like to talk about today is why problems are this way. That is, why problems are how Reality presents us with opportunities.
Example #2: TF having BM forced down his throat by client
The why is contained I think, in a mathematical theorem by Kurt Gödel, his famous incompleteness theorem. This theorem was explored along with the music of Bach and visual art of M.C. Escher in Hofstadter’s Pulitzer Prize winning book Gödel, Escher, Bach.
The idea of Gödel’s theorem is that any formal system is incomplete in 3 profound ways.
• First, formal systems are incomplete in that there are true things that they cannot prove are true.
• Second, there are things that are false, that that formal systems cannot prove are false.
• And third, there are infinitely many of both un-provable truths and un-provable falsities.
Huh?
The point is, that professionals work in formal systems. Lawyers above all. As over-burdened, over-caffeinated, under-slept, under-family-timed, professionals, you may have an intuition of where I’m going with this. So let’s all look at Figure 1.

Figure 1
Source: Gödel, Escher, Bach (1979) p. 71
Axioms are at the base of the trees of provable (both the white and black trees) in Figure 1. Next up the trunk of the tree are theorems, that is, your legal training. The left hand “provable” tree, is where you work, out at the tip of one of the white branches.
Tips of white branches are the areas of very applied legal work. Reachable and unreachable truths are all around you and have names. Unreachable truths are called “problem clients.” Reachable truths are called “good clients.” And between these two kinds of clients is a paradox. The paradox is that other things equal, we would prefer to work with the “good clients.” But, it is the unreachable truths, the “problem clients,” that are the source of opportunities.
Problem clients are problems for the SAME REASON they are opportunities: they bring you situations that don’t fit. Situations incommensurable to your current experience, legal processes, and legal culture. These clients make you give them THE LOOK.
THE LOOK is always given down the corporate hierarchy. As they say “Suck up, kick down.” Here is how THE LOOK happens. Your boss will precede giving you THE LOOK with a heavy sigh. Then perhaps take their spectacles off. Then often, rest an elbow on the desk and the palm of hand on forehead. And then, a career limiting statement for you, will come out of the boss’s mouth.
For example: When I demonstrated to one of my bosses at HP that we could make HP #1 in US patenting, … after the heavy sigh, after taking his glasses off one ear, after putting his elbow on the table and on his forehead … he said “If my boss sees this presentation, you are fired. This is HP … we sell printers, we don’t sell ideas.”
The purpose of THE LOOK when combined with the career-limiting statement, is to send a very specific message down the corporate hierarchy: “The world is full of problems, and I’m looking at one of them right now!”
Most likely, you will detect that you have a problem client (i.e., opportunity), during or immediately after giving the client THE LOOK and optionally, an instinctive, instantaneously rationalized legal equivalent of “BOOOOOOOO!!!!!!” to scare the client/problem/situation away.
Come, let us reason together.
While you are sending the message “The world is full of problems, and I’m looking at one of them right now!” your client is a pat of butter in a hot frying pan.
The butter thinks to itself “This time I really am going to remain rectangular.” And then it feels very relaxed, and then it smells smoke.
Afterwards, if s/he has a true problem, the client will recover composure and think “That did not go SOOO badly. … I think Legal meant that my problem is:”
• “irrelevant,”
• “impossible,”
• “infinite-to-solve,”
• “inefficient,”
“This means it is only a matter of time until Legal will help me with this! This is good!!!”
Because true problems are not just about doing something routine for the client, they seem impossible to start with. Everyone is overworked. Nobody has the time to drop everything, stop, and think “I need to figure out a better architecture to do X in the legal department.” Organizational change is hard. Think about it, even the need for personal change always starts out with the 5-i's.
But, what makes true problems opportunities, is that resistance is futile. Futile because true problems are Reality’s signal that we need to change or die. Change means the worst. It means re-architecting layers in, reengineering jobs across, or adding new interfaces to our systems. This is thankless overtime. Overtime where you can count on being back-stabbed, betrayed, abandoned, and otherwise being treated as a piece of public property.
We have to break out of the old routine to develop a new routine, and frankly, it is irritating to break out of old routines. So we deny and procrastinate. But, if we are confronted by a true problem, to avoid becoming evolutionarily extinct, we must change. And not only change, we need to find competitive advantage as we change. We can’t be content with making problems go away. We need to make competitive advantage bigger as we go.
So, I’d like to encourage you to think that true problems are not. They are opportunities. Opportunities to expand our brains, our experience, our ability to network to find ways to convert the first four stages of problems into the fifth.
Aside … I’m not sure (because I’m working Ad libitum here) but it seems like your management team is itching to hear you come in the door and say “Carol, I have a stage 1 problem that I need help with. What’s the trick to make this a stage 5?” “Oh, I’m sorry Tim, are you giving me THE LOOK???? I guess I need to come back at a better time.”
The secret to surfing change is to name it. Instead of continually trying harder, trying to keep the external appearance of effortless pathological professionalism. Talk about what isn’t working. Take a risk. Share. Compare notes with colleagues about who does and who does not give THE LOOK when a need for change is brought up. You may have to build a rebel alliance. But I think not. Just having a communion of kindred minds about what isn’t going well can help tremendously in cutting through the knots of true problems.
• Skill #2: Be Enthusiastic!!! The root words of “enthusiasm” are “en” which means “in” and “theos” which means god. Enthusiasm is the god within. In this section I want to talk about 4 keys aspects of enthusiasm.
First, enthusiasm is a force multiplier. Whatever power you have built up with your clients because of the school you went to, your experience, your mind, your professionalism, your service, and your objectivity, you can multiply that power. Multiply your power by being enthusiastic.
I know, this is counter intuitive and perhaps disorienting. Nobody actually said it in law school, but everyone picks up that you need to look and act a certain way. Paul Graham talks about teenagers always being on duty as conformists. And while I don’t think law school is as bad as high school, I do think that law school and professionalism are such forces, that nobody can take the punishment, and you settle down, or, you leave.
The first causality in this legal culture war is unfortunately, enthusiasm. If you can bring your enthusiasm out for your clients, you can take your work up a notch where it counts: results.
I’d like to give you an example. I went around the world in July of 2000 running invention workshops for HP. When I was at HP Labs Bristol an English attorney came up to me after the workshop and said. “I could never say what you say. But, when you say what you say, the inventors start doing what I want.” Until I began working with (Chi Suk Kim) last year, I thought that what the English attorney was talking about what me saying that “Anything is patentable.”
False. Chi related to me what she was taught in law school “Everything under the sun made by man is patentable.” Huh???? I was saying something non-controversial?
Today I realize what the English attorney could not do was to say something non-controversial in a controversial way. In an enthusiastic way. He could not afford to be seen as enthusiastic by inventors down the corporate hierarchy from normal clients. Too unprofessional. Too risky.
But from a business perspective this kind of professionalism is pathological. Too inefficient. Too ineffective. Too unproductive to compete in today’s developing IP markets.
Second, enthusiasm is contagious. How many attorneys in this room will raise your hands when I ask nicely? Ok, great. Arms down now. Ok, now, how many attorneys in this room have attorney “friends” who you have overheard say “I have too much to do!” Please raise your hands. Ok, so we’ve established that we all have “friend” attorneys who are over worked. Present company excepted, but we all have friends.
Enthusiasm is contagious, and this can help our “friends.” For example, in the 1920s, 1930s, and 1940s telephone use, and the number of telephone operators were measured and forecasted into the future. The key prediction was that by 1980 the telephone company would employ all available workers in the United States to keep up with demand. 1980 came and went without all of us working for the phone company, but when you think about it, by the definition of operator in the 1920s, we are all phone operators today.
This telephone example, demonstrates what in marketing we call a functional shift. The function of connecting a phone call has shifted from the middle of the network, to the edge of the network to customers. Enthusiasm is the key first step to finding functional shifts in very applied areas of legal work. That is, enthusiasm will give you a free workforce.
At HP I built a world-wide system to automatically pay inventors the incentives they were owed for generating intellectual property for the company. I gained access to the financial database by enthusiastically teaching the finance programming team about inventions. I gained access to financial resources, by attracting a VP’s attention for results that happened as a result of enthusiasm. Once I had his location code, I was able to capture 1 full time junior programmer and build a prototype. When that prototype failed, I was given another chance at a bigger prototype because I enthusiastically told the truth about the lessons learned.
Enthusiasm is Teflon. Enthusiasm is results. Enthusiasm in a group of people is a tsunami. Senior management is always watching for tsunamis in their organizations. And unlike what you would expect, the tsunami instigators are given more ocean, more islands, more volcanoes to work with. Senior management is looking for people in the hive who can get more done with less. And the best way to do that is to be enthusiastic.
Another great way to put enthusiasm to work for you is to have advertised office hours. Encourage your clients to come into a legal conference room on Fridays from 2:00 to 4:00 pm. Have no agenda. Let them come and then listen to them. Understand, then you can seek to be understood.
In the area of IP office hours I learned a lot. I learned that:
• Inventors can train other inventors to invent ... more effectively than I can.
• Inventors can find patent, copyright, and trademark infringements.
• Inventors could find opportunities to recruit cooperation from management, … for me.
Every overworked attorney friend of the people in this room deserves to hear about how enthusiasm can recruit help and help these poor attorneys to work smarter, faster, and more effortlessly by allowing teams to build from enthusiasm.
Third, enthusiasm is transformational. Enthusiasm automatically takes us outside the ruts of habit. Remember Gödel’s white tree earlier in this talk? Enthusiasm makes contacts with those problem customers just in the unreachable area. Enthusiasm builds a network among “problem” and “good” customers. And enthusiasm allows those customers to form communities that allow information exchange, information forecasting, and future problem articulation.
When you build with enthusiasm, it is much easier to refine work processes. It becomes possible to allow people to do what they like to do as well as what they must do. Slam-dunk refinements just start popping up like mushrooms and implementing the improvements does not meet the interminable penalty flag throwing contests of normal bureaucracy.
Fourth, enthusiasm transfers hope to the hopeless. In this economy, and in the less glamorous jobs of the legal community, there are a lot of people sleep walking through life. Present company excepted, of course. But, if you are enthusiastic about what you are doing and who you are working with, you will find that people just absorb hope from you. I call it hope by osmosis.
Your demeanor, humor, approachability, perceived helpfulness, perceived humility, and over-all likeability are dramatically improved by being enthusiastic. And just think of how hard it is to sleep when you are around enthusiastic people.
Imaging your entire legal department working together from end to end. A big thing that is between you today, and that happening is sleep walking. For sleep walking people, work is not about quality, work is about covering the mortgage. Work is not about the opportunity to work with super smart legal minds, work is about suffering in silence from big egos, or work is about getting through the day or week without anyone seeing a divorce’s impact on you.
There is an invisible army inside your department and inside your company. This army marches not on food, but on hope. Knowledge work is made powerful by having hope for the future. The invisible knowledge work army is waiting for your enthusiasm to light them up.
Conclusions about enthusiasm. While we each can feel the god within when in the grip of enthusiasm. It is inevitable that outsiders won’t ALL see the objects of our enthusiasms, the same way we do. Enthusiasm polarizes people. Polarization is the dark side of the power of enthusiasm.
You may have experienced polarizing someone when you were trying to help them. It is easy to instinctively react to polarizing someone negatively, by saying “I can’t be like that any more.” I grew up helping-polarizing-regretting. And it wasn’t until I read Guy Kawasaki’s Selling the Dream that I figured out that the fact that we polarize people is OK. That is, polarizing people is OK as long as you listen to the impacts of, and manage your enthusiasm. Nothing will happen without people complaining. So, pick the most important things that need to happen, and do the best you can to keep the complaining to a dull roar.
• Skill #3 is to Frame Change Open-Ended-Ly. At the point we learn about it, change almost always sucks. At least that is the first impression that change always gives me. And, I’m afraid that I tend to make snap assumptions based on first impressions. And when change happens, I find myself making a snap assumption that a specific scenario is about to happen.
Here is the scenario in a famous quote related to long term planning.
In the beginning was the plan, and then the specification; And the plan was without form, and the specification was void. And darkness was on the faces of the implementers thereof;
And they spake unto their leader, saying: "It is a crock of shit, and smells as of a sewer." And the leader took pity on them, and spoke to the project leader:
"It is a crock of excrement, and none may abide the odor thereof." And the project leader spake unto his section head, saying: "It is a container of excrement, and it is very strong, such that none may abide it."
The section head then hurried to his department manager, and informed him thus: "It is a vessel of fertilizer, and none may abide its strength."
The department manager carried these words to his general manager, and spoke unto him saying: “It containeth that which aideth the growth of plants, and it is very strong."
And so it was that the general manager rejoiced and delivered the good news unto the Vice President. "It promoteth growth, and it is very powerful."
The Vice President rushed to the President's side, and joyously exclaimed: "This powerful new software product will promote the growth of the company!"
And the President looked upon the product, and saw that it was very good.
Source: http://dictionary.die.net/snafu%20principle
When I think about how often the above scenario actually happens, it is hard to come up with a concrete example. So, I have to admit to myself, that the “darkness on the faces of the implementers” scenario does not happen often. So this raises an interesting question.
If the worst scenario does not happen often, why do I always react negatively to change? I have an idea why: Downshifting.
In their book Making Connections: Teaching and the Human Brain Renate and Geoffrey Caine discuss (pp. 70-86) the effects of stress on thinking. Stress’s effects in their work come under the heading of Downshifting.
The human brain is actually 3 brains in 1. At the top of our spine is the reptilian brain (or limbic system), which is the oldest part of the brain. The limbic system is the center of self-knowledge and the center of emotion. One side effect of putting these two functions in the same place is that humans don’t learn very well, when we are upset. If you have a friend who has been involuntarily divorced, and 5 or 10 years later realizes why s/he was rejected by the spouse, the limbic system is likely to be the reason. When upset, we just don’t learn.
On top of the limbic system is the paleomammalian brain (or ) which in humans strongly resembles the brains of pigs and dogs. On top of the paleomammalian brain is the neomammalian brain (or neocortex). Each of these kinds of brains gives us unique abilities and behviors, knitting all three brains together is what makes humans most human.
The gist of the Caine and Caine reading of the literature and the findings of their own research is that stress causes a shift in brain function from the neomamalian brain to the older reptilian. What happens when the limbic system is calling the shots in our thoughts is mostly playback of deeply entrenched evolved programming relating to territory, identity, emotion, group conformity and aggression.
Limbic behaviors include:
• Pain response
• Fight or flee
• Defend turf
• Go with peer pressure and do what the group says
• Eat all the food (ice cream) now!
• Attack anyone or anything creating uncertainty
and last but not least …
• Projecting cynical quotes related to long term planning
So my explanation for my always assuming the worst will happen when change is announced, is that I am downshifting. For example, I downshifted after I built HP’s invention incentive payment system, and the legal department wanted to take it away from me.
This was an event that I had been working for 2 years to make happen, was praying to happen daily, because I needed a new challenge and was bored. But still, when someone takes the finished product out of your hand … “Mom he took it ON PURPOSE!” it is easy for a person to have an instinctive reaction.
When I catch myself reacting, it is a good signal that my inner reptile, my limbic system, is in control of my thoughts and behavior. (Note This is especially clear if I catch myself sticking out my tongue.)
So, now we have a new question: When I catch myself reacting to change, how can I transpose reaction into rational response? How can I shift my brain functioning from reptilian past neomammalian and get all the way back to human?
My answer is to frame change open-ended-ly. While the wheels are coming off, and I’m feeling like venting anger, crying, or taking my ball and going home, I try to stop, and mentally set up an open ended frame around whatever the change is.
So here is the BasicIP 5-step process to respond to change.
• Step 1: Don’t look at what you’ve lost. Don’t think about what everybody else is thinking about you. Look only at what is not currently defined. And, find a way into the virgin competitive space, the undefined.
All change is open-ended. Remember Gödel’s theorem, there are infinitely many things that can be done that can’t be constrained in the current system’s rules. Make a list of what is not defined, think about setting up a new homestead in the undefined.
For example, when I first arrived at HP, I learned I was in a very clique oriented environment stigmatized as a useless outsider. So, what was not defined was everything the cliques had not already staked out as their turf. Specifically, needed new features that nobody wanted to touch. I then threw myself into defining new features for new customers. An undefended turf area. The way forward surprisingly often, runs through territory nobody else wants. Unwanted real-estate is cheap. Next …
• Step 2: Whatever social position or status that you are in after the change, look for other people in the same status or a worse social position or status and mobilize them as your team.
Going back to HP, as a stranger in a very strange land, living off the land outside the in cliques, I looked around and found another person living off the land. He was a 62ES. That is, he was a level 62 Engineer Scientist. 62 was the next to highest seniority level HP had at the time. And engineer scientists were the key people to get new things done. ESes were the architectural designers of new features. I could not believe how lucky I was to have this caliber of person on my team.
This person had worked on every high-end HP LaserJet project since HP introduced the LaserJet. But, for some reason, he was outside the cliques. No matter. No worries about why he’d been stigmatized. He was an obvious winner from the moment I laid eyes on him. You must look for potential and not social status in building your team. You must not look for resources.
Ignore resources because people are the best resource you can have. They are better than good offices. Better than new computers. Better than corporate T-shirts. Better than all the trappings of professionalism. People are better than anything because nobody can build anything alone anymore. If you want to make the most of change, you need a team. And people are where you find a team.
The key qualification for your team isn’t education, pedigree, pay scale, or ranking. They key qualification is the ability and willingness to do get behind a vision with their full enthusiasm. Suck down to underappreciated people, find the people at the same level or lower, and give them a platform for conversation. And the next step will happen naturally.
• Step 3: Evolve TPFWD = The Plan For World Domination.
The plans for world domination at HP changed as my circumstances changed. When I first arrived at HP, the plan for world domination was to sneak a significant feature (toner cost measurement) into a product line, without anyone noticing.
• When I became IP manager, the plan for world domination became obtaining a revenue-free resolution to a big patent litigation event.

• When I was sucked into the legal department the plan for world domination became moving HP from 18th in US patenting, into the top 10 (HP peaked at #3).

• After we implemented the new corporate wide IP strategy, the plan for world domination became building a world-wide automatic invention incentive payment system without a budget or headcount.

• In the next step, I’ll talk about when I was laid off by HP in 2001. But at that time, my oldest son was 16, and my family was headed into 3 hard years of teenager issues. Religion roulette, bad friends, high IQ, low motivation, cusp of disaster, with a dash of pent up school malaise. Yucky stuff.
But, because I was unemployed, I was able to have lots of contact time. My son and I drove up the Columbia River Gorge to probably the best bookstore in the Northwest, Powell’s Books in Portland, and grazed the stacks. We drove across Idaho and enjoyed the views. We drove back to Powell’s and grazed again. We did all this in a beat up 1990 Miata. The Plan For World Domination was to keep getting by day-to-day and hold the family and my son’s future, together. And, with this TPFWD we got through tough years day by day.
I’ve never had to worry about finding a plan for world domination. These plans have a way of finding me.
• Step 4: In the aftermath of change, while you are still unsupervised, hot wire your life and make it new.
I had a pretty big change in 2001 when HP Legal laid me off in a large scale restructuring. It takes a few weeks to let the rejection, humiliation, and just plain shock of being laid off, fall behind you. Once you can shrug and let the baggage roll off your back, you realize there are no constraints. The new hard question becomes “What would the best life for me and my family look like?”
I didn’t think about hot wiring my life when I was laid off. But, without thinking about it, I was doing hot wiring. And today I have an independent business. Get to work at home. Get to use lots of computer technology that I get to choose and make work myself. Hot wiring has made being unemployed a big win for me. But, hot wiring can work, even while you are employed! For example,
When I was in HP Legal and the furniture police downsized our cubes from 10’ x 10’ to 8’ x 8’ cubes, I was able to hot wire. I removed all work surfaces in my cube, and then put my reduced resources into 2 lounge chairs for my cube. The lounge chairs had laptop tablet tables on them. People walked into my cube and said “How come your cube is bigger than everybody else’s?” because it was empty except for those lounge chairs. Just by hotwiring your life, you get yourself back in the game, and you put fun back into your job.
• Step 5: Get ready for the next change.
I had a premonition that my layoff was coming about 3 months before it happened. My admin at that time, is still angry with me for being able to predict that at the same time as being a man.
The point here is that when you see your downstream results are not being valued as mission critical deliverables for your organization, the hand writing is on the wall. So, start thinking about “If I had $20 million dollars in the bank but only 10 years to live, what would I do tomorrow.” When you start coming up with answers, write them down and start gossiping about your answers. You’ll find that a lot of people around you are thinking the same thing. This is how I found my business partner while I was still in HP.
Summary: Don’t fight change, reframe change as open ended. The next time your legal department is re-organized, ask one another: “
• Are we stressed?
• How am I feeling about this?
• Reptile?
• Paleomammalian? Or,
• Neomammalian?
• Are we downshifted?
• What is now undefined?
• What would be the best thing to do fun-wise?
• What would be the best thing for my family?
You always have control, unless you freely give control over yourself to someone else. The best way to maintain control is to monitor your stress. And lever yourself back into neomammalian thinking and behaving as fast as you possibly can.
• Skill #4: Solve Problems Closed Loop. As an economic engineer in the HP Corporate Legal Department, I inherited many issues, policies, and situations from attorneys, that were open loops.
An open loop, is a task that needs doing. Something that needs to tracked, remembered, researched, worked on, and then closed. For example, paying an inventor an incentive. This is just an example, if I worked at Saint-Gobain’s Corporate Legal department, I’m suspicious similar open loop issues might be present.
At HP, the legal department negotiated with the HR department and senior management to provide inventors incentives to do 2 things:
• Write down completed invention disclosures.
• Work with patent attorneys and patent agents drafting patent applications to read and review their inventions.
Simple really. Incent inventors to work with the attorneys. Makes sense.
After the management negotiations were completed, the attorneys wrote a notification memo to R&D managers and then filed the policy in a manila folder. The impact on inventing looked like this:

Figure 2: Initial Invention Incentive Response
Initially, invention went up, and then it came down to almost what invention would have been without an invention incentive. While corporate legal was happy to negotiate the policy, and work with management to get approval. Corporate legal did not actually pay the inventors. In fact, corporate legal did not actually specify how the inventors should be paid. Corporate legal left that up to the R&D managers across HP. All 1,000 (or so) of them.
Not having a payment system to go with the invention incentive policy is an example of an open loop. What happened to HP’s invention incentive system was that at first it incented inventions, and then once how to pay inventors started to become an issue, the incentive became a dis-incentive system to many inventors who stopped participating.
So, I built an automatic invention incentive payment system. And the impact on inventing looked like this:

Figure 3: Inventing After Invention Auto Pay
Tripled inventing in one month. So, the first moral of closing the loop, is that you get a lot more of what you want.
The second moral of closing the loop is that you need to be careful what you want.
The slope of the purple line in Figure 3 is pretty steep. Steep lines like these have a tendency to over-run the capacity of systems to handle whatever is being done. If the slope of the purple line gives you an uneasy feeling I think that is because it is telling you that this system, this incentive policy with its automatic follow-through, is still …. open loop. Open loop, how?
• How many inventions are inventors paid for? If the number of inventions paid for is not capped, you have an open loop. HP did not cap invention incentives, and one of my “super inventors” actually told his boss that the boss was responsible for only 43% of his total compensation.

• Quality of inventions. If inventions are of crappy quality, then inventors can game the system to pay off their mortgages. So, if quality isn’t specified, the system is open loop to that.

• What about inventors outside the USA? If you automate payments in only part of the world, in a world-wide company, you will have to run partially open loop. Although you’ll be unlikely to see that you are open loop if you don’t travel and get to feel the cheers and jeers of your colleagues off “the big island” of the USA.

• Figure 4:
HP Patent From Intern
When you build a system or policy that touches money, the number of ways to be open loop becomes multiplies. I believe that this was why the HP Legal department initially did not want the responsibility to pay invention incentives.
Bill, why are you picking on us? I’m not picking on you. I’m righting an oversight we inherited from England. Think about it. The Common Law, quill pens, bureaucracy, these are the legacy of the USA’s connection with England.
James Watt (1736-1819) adapted the centrifugal governor from windmills to steam engines. Watt was a contemporary of Erasmus Darwin (Charles Darwin’s grandfather), Samuel Galton, Matthew Boulton, Josiah Wedgewood, James Keir, and they met monthly on the night of the full moon (so that finding their way home was easy). These meetings and the men are recalled with wonderful empathy and painstaking scholarship by Jenny Uglow in her book Lunar Men. Of all the colleagues James Watt had in the period none were lawyers. And so English law missed out on the scientific gift of closed loop feedback, the principle of the centrifugal governor. So, I’m not picking on lawyers, I’m just trying to make up for lost time by injecting an idea into law, that should have been shared in 1788.
Closing the loop is an idea like quality. I don’t think you can over emphasize it. Especially when you build a system that touches money, you have to think of everything. Just like contracts. So, closing the loop is an impossible goal to exhaust.
The days of legal department policies being drafted, filed, and forgotten, are over. It is not enough to have a policy. You need to have well thought out strategic ideas that cover the who, the what, the when, the where, and the why of the policy. Ideas that self-inforce, automatically creating the behaviors that protect and extend the success of the businesses we work for.
• Skill #5 is to exploit Gilb’s Law of Quantification. Gilb’s law of quantification is that you can always measure things in a way that is superior to not measuring at all. You can exploit Gilb’s law by picking one big thing you do in your job and measuring it in a way you’ve never measured it before.
My “for example” on Gilb’s law is a story about running workshops at HP. After I had run about 15 invention mining sessions, I realized that I had enough data captured to do some data mining.
I had captured how many people attended my workshops, how many stayed after it became clear that I was going to force them to write invention disclosures on the spot (about ½). How many completed invention disclosures I captured. Once the disclosures were processed by the legal department, I kept track of how many of the disclosures from a workwshop were filed for patents or trade secreted. And finally, I kept track of how long each invention workshop had lasted.
Gilb’s law is that it is always superior to measure, so knowing this, before I knew I needed these data elements, I captured them. You never capture enough data in hind sight, but starting with a good list of variables to measure is a great start towards Gilb’s law exploitation.
To do my data mining, I set up a multiple regression that looked like this:
FiledDisclosures = B1 + WrkshpDrtn + AttndsWhStyd
When I ran this regression on my 15 rows of data, I had an explained variation of about 19%. I sat back in my chair and thought, “What is this telling me … Oh … I’m missing an important variable … Wonder what variables I’m missing … Oh … Me!
I had moderated all 15 workshops, and I had learned a lot by doing the workshops, so I hypothesized that there was a normal distribution learning curve at work, and then I guesstimated how much I had learned as a percentage of what I knew at the end of the period, and then put those values back into the data for each workshop. Then I re-ran the regression with one new variable:
FiledDisclosures = B1 + WrkshpDrtn + AttndsWhStyd + LrngCrv
When I ran this regression, the equation explained 92% of the variation in filed invention disclosures.
I sat back in my chair and thought “This was a big learning curve … what … did … I … learn?” and two words popped into my head “Shut” and “up.”
You see, when I started running invention workshops I was using a corporate slide deck with trends in patenting and the official documentation of the importance of patent law and ZZZZZZZZZZZZZZZZzzzzzzzzzzzzzzzzzzzzz. I put the audience to sleep.
When I ran the regression that ended in me saying “Shut up!” to myself, Gilb’s law protected me. I had the data that allowed me to run the regression and articulate what I had learned tacitly: To answer the good questions of HP inventors that are asked in every workshop. Simple really.
The longer explanation of this tacit shift from a sleepy presentation to one that generated a lot of usable IP is this. But HP is full of broad minded geniuses. And they asked me all sorts of questions about the gaping holes in the IP system from there perspective. Questions like these:
Question: “Disclosing an invention is a lot of work. Why should we do it?”
Answer: “Because it is not a lot of work, and it is an easy way for each of us as employees to help the company.”
Question: “I’ve heard we have an invention incentive program, but I don’t know how many inventions I’ve turned in. I don’t know how much I should have been paid. Is there some way to get records on these?”
Answer: “We are currently building an automatic system to pay ….”
When I did each new workshop, I dropped material that had been consistently putting employees to sleep. And I rolled in questions to the felt needs that the employees had about the IP program.
I think this approach can work outside of IP. Just get in front of people, and listen carefully to their questions, and then present answers to questions on Non-Disclosures, On Contracts, On Litigation, on any legal area.
The point here is that by capturing data at the front end, as you work through the middle you can dramatically increase the acuity of learning you articulate. Once the learning can be articulated, it can be shared. Once you can share your learning, then others can build on your learning. So, the first reason for measuring, is that it will help you teach yourself.
But, it gets better.
A second and more important benefit of measuring is to suppress corporate antibodies.
Not at your company, but I believe you all have friends in other companies, in large ossified bureaucracies perhaps. This point is for those “friends” of yours who may be interested to learn that one can exploit Gilb’s law by capturing data on important stuff and … sharing the data.
When you make a process refinement or when you make a new process and you capture the data on the process. It is amazing how sharing data will cut down criticism. Prime example of this is the data I kept for running regressions above. As invention momentum built in HP, the 10 other HP legal offices outside Boise began to be interested in what Boise Legal was doing.
Interest invariable materialized as a phone call. “Say Bill, what is this inventshop that I hear you are running?” I would explain verbally on the phone what we did. But more importantly, I sent 2 file attachments: the powerpoint slide deck I used in the workshop, and the spreadsheet of data on disclosures, attendee count, duration, filing decisions etc.
Hell hath no “Not Invented Here” bias like a lawyer scorned. Or, something like that. Introducing an attorney to a new business process that really works, is like dancing on your own grave. At least it feels like that. So, when I would be in these phone calls with the managing counsel of other legal offices, it was very stressful. Fortunately, I didn’t at the time know I was dancing on my own grave, and that ignorance is bliss in hindsight. But even if I had been stressed, I think Gilb’s law provides immunity when you really are trying to help, and you are changing processes in a legal environment.
So Gilb’s law is to measure. Measurement is the gift that keeps on giving.
• Skill #6: Use Self Censorship As Feedback.
Question: What do these fiascos have in common? The Bay of Pigs, North Korea, Pearl Harbor, and War Escalation in Vietnam?
Answer: That Irving Janis studied them with an eye towards how group dynamics played a role in the production of fiascos. Janis wrote Groupthink, a book, in 1972 putting his finger on how groups mismanage disagreement because members do not want to seem .. well … disagreeable.
The hallmark of groupthink is self censorship. And I think that self censorship is an important answer to why smart people fail. For example, please read this quote from Dietrich Dörner:
“Failure does not strike like a bolt from the blue; it develops gradually according to its own logic. … Complicated situations seem to elicit habits of thought that set failure in motion from the beginning. From that point, the continuing complexity of the task and the growing apprehension of failure encourage methods of decision making that make failure even more likely and then inevitable.”
Dietrich Dörner (1996), p. 10.
There is a strange resonance, or ring of truth, in Dorner’s statement. It rings true to me because I’ve been part of several business failures.
I was a new product manager for a mobile robot that failed. I’ve been an IP consultant to companies that have had great R&D and great products, but have failed. I’ve even predicted to the CEOs of the companies about to fail, that they are on a course to disaster. I can often feel failure before it happens. And the reason is this resonance that failure is in play. The resonance that failure is in place is due to the people in the companies involved not addressing the most obvious problems plaguing them, because they don’t want to seem disagreeable. Failure in play, stays in play because of self-censorship.
So self-censorship, i.e., groupthink is what prevents teams from turning failure to success.
I’d like to apply this idea to the legal world through the work I did supporting the business side of patent litigation at HP. To me the decision making within litigation, … is like a theme park. The corkscrew, the water rides, the anti-gravity rides, the straight drop, they are all there waiting for you in litigation. You get to take all the rides not only during the day while you work, but in bed at night, just before you dose off to sleep.
Where is groupthink in litigation? While some people on a litigation team are allowed to talk about anything, ask any question, turn over any rock of an idea to find a solution to the matter, most people on the teams are not allowed to talk or speak freely. Most people on a litigation team have tight roles, and must censor their thoughts to prevent them from reaching their mouths.
I’m not very good at self censorship, I’m from a long line of truth tellers. And being a truth teller gives me two stories, a fun story, and an embarrassing story to share today.
The embarrassing story is about working with Morgan Chew of Irell Manella while I was IP manager for HP’s LaserJet group.
Morgan Chew is often rated the top litigator in California. He travels like a lawyer rock star, with an entourage of lawyers. There is the “talking head,” the underling entourage lawyer that does all the questioning and interacting with the client technical experts. There is “the documenter,” the underling taking notes and getting everyone’s names. There is the “silent one,” the underling lawyer that does not say anything, and on top of these, a few paralegals and Morgan.
Morgan sits at the conference table filled on one side with his entourage, and on the other with the client’s assembled technical gurus. Morgan watches and listens. Undisturbed by the necessity of taking notes, or of knowing names of who he is listening to, the full power of Morgan’s concentration can be focused on thinking.
The context of this meeting was reviewing how HP’s technology worked, how Xerox’s patent worked in order to come up with a defense strategy for HP. HP’s technology was patented and used in the same for as described in the patent. We started out with “talking head” interviewing the inventor of HP’s technology patent about how the technology and patent worked.
Next, “talking head” and the inventor reviewed how the inventor understood the Xerox patent to work. What came out of the contrast of these two discussions is that Xerox’s patent used one mechanism (table look up) and the HP patent used another mechanism (an emerging property) to do the same thing. When the meeting then turned to its next agenda item, my self-censorship alarm went off.
I raised my hand, and asked to speak. “Talking head” looked at me and said “Ok.” Morgan Chew looked at me. I pointed out that the two patents used completely different mechanisms of operation, the one a table look up, the other an emerging property. Morgan Chew said “What is an emerging property?” I attempted an explanation saying that phenomena like freezing of water, and competition in a free market, are both emerging properties.
Unsatisfied, Morgan Chew turned to the inventor of HP’s patent and said “Can you tell me what an emerging property is?” The inventor looked at me confused and said “No, I’ve never heard of an emerging property before.”
Next Morgan Chew turned to me and said “Bill, we are now going to proceed with our meeting. And, we are not going to talk about the ideas you just discussed. Is that OK with you?”
Among the many morals to this story is that when you listen to your internal self-censorship, you can get chewed out. Morgan Chewed out to be exact.
This story took place early in my tenure as IP manager. I had strong allies on my side of the table, my boss, father of the LaserJet and other brother Ph.Ds. that knew me. But my allies had never heard of an emerging property either. So, they let me take the bullet and the meeting moved on.
I had not yet established credibility as a Cassandra. My second self-censorship story relates what can happen once you have credibility as a Cassandra. Morgan Chew moved through the rest of the meeting without emerging properties, and without emerging properties the case moved on to constant losses in simulated trials. But, what is a Cassandra?
In his book, Only The Paranoid Survive, Andrew Grove describes Cassandras like this:
“Cassandras in your organization are a consistently helpful element in recognizing strategic inflection points. … people who are quick to recognize impending change and cry out an early warning.”
Andrew Grove (1996), p. 108.
Overcoming self-censorship on your team turns you instantly into a team Cassandra. Don’t fear being a Cassandra, instead work to manage it in yourself and in your team, and encourage overcoming self-censorship among your colleagues. Being a Cassandra does not mean you are being unprofessional. On the contrary, speaking the truth regardless of your self-interest, is about the most professional behavior one can perform on earth. It helps your cause, it helps your company, it helps your cases, and in the long run, it helps your reputation. Perhaps most importantly, overcoming self-censorship and speaking the truth increases your value to your organization.
My second story, the fun story about overcoming self-censorship, came several months later while still immersed in the same litigation matter. We had meeting after meeting about the matter, trying to generate new alternatives. I began to raise the possibility of using hostile (rather than conventional benign “vigorously defend” type) press releases. The suggestion was dismissed, initially without a reason. Later, the suggestion was dismissed because “Hostile press would be too incendiary to the matters already running.”
Once a reason for why we shouldn’t try hostile press came out, everyone on the team was able to hear a single reason. A single sentence that encapsulated why we were not trying the obvious solution. This is a big step. Take this step and you will change how your teams function. You will become more successful.
I don’t know if you know this at Saint-Gobain, but not everyone in a meeting agrees with one another. And on this litigation team, the most important people did not agree that hostile press was necessarily incendiary. Once they heard why some people were resisting, the tide began to turn.
I could not see the changes in thinking, but I could not get over, not trying the obvious solution when it would cost nothing. This is perhaps the fatal flaw of the Cassandra. Once you overcome your fear, you see that you need to push for reasons, when the reasons are finally given, they are often laughable. Overcoming self-censorship is a chain reaction that leads from a vague sensation that simple approaches to the problems are not being exploited, and the reaction ends up in slowing down your team, getting the team to share its thinking, and getting the team to process reasons as a team.
So, I asked that question “Why don’t we try hostile press?” 60 times before the key team member said “Ok.” The following quotation is from the key team member, Jim Hall, father of the LaserJet. And the last sentence is what you need to read to understand how, if you are patient, if you are rational and deliberate, the upside available to you in overcoming self-censorship.
"Bill brought a fresh new, broad perspective to the litigation efforts in which I saw him participate.  He effectively utilized his business background, data mining expertise and legal/technical skills to quickly identify effective new litigation strategies and tactics.  Excellent teamwork skills allowed integration of his inputs/efforts with those of other litigation team members.  His contribution was the major deciding factor in achieving a successful outcome in at least one litigation case that could have cost our company hundreds of millions of dollars."
 
Jim Hall
HP LaserJet R&D Manager
Boise, ID
In summary, my points about self-censorship are simple:
• When you feel yourself self-censoring, you should ask yourself “What am I afraid of?” and if the answer is “this team is not considering the most obvious solution to the problem.” Then, take a risk, voice your fear.

• First corollary to using self-censorship as feedback is that when you see a team member overcoming their self-censorship and voicing their fears, uncertainties and doubts, support them. Support Cassandras, don’t throw them under the bus.

• Start small and build. To reach your full potential as a Cassandra, you have to learn how to use Truth Telling. Truth telling consists of integrating Powers. The powers of:
• Silence.
• Saving face.
• Data, to speak for themselves.
• And most importantly
• “Proof by repetition.”
Self-censorship starts in your gut and then works its way out through your mouth, your writing, your encouragement to others, and finally, into your team’s most strategic thinking. Take a risk to make your team better. Take a risk together to make your teams great.
• Skill #7: Know the difference between contracts and Reality. The key idea in this skill, is to monitor your own beliefs and behavior for incipient sacred cows, so that you can manage your beliefs opportunistically, practically, and proactively.
The word “incipient” means something you have, but that you don’t know you have. And we all have incipient sacred cows. Skill #7 isn’t to eliminate sacred cows, it is to manage them so that they don’t interfere with teamwork and results.
I pick on the difference between contracts and Reality as an example because I believe that we’ve all been exposed to newly-minted law school grads who are very gung ho about the power of law, the beauty of law, the perfection of law, to the point where the existence of Reality becomes secondary to LAW, LAW, LAW, LAW, LAW!
For example, after leaving HP I was working with a client that had just retained a newly-barred, newly-minted, recently clerked attorney. This attorney had read all the client’s contracts, and she knew that nobody else had read them. A sacred cow when combined with competitive advantage and enthusiasm is a powerful powerful thing. Many of us can probably remember an instance where we were this person. For the sake of convenience I want to call the young attorney in this situation the “young whippersnapper.”
In choosing young whippersnapper I’d like to defend myself against the charges of being unkind by saying, this is what I was openly called when I first worked in industry. So, it is a name with some distinction to my mind. And because I was not a lawyer, it is clearly not a legal term, though as the lone spokesperson for the non-legal world in this meeting, I authorize all lawyers to use the term.
The details of the client situation were that the client had recently outsourced manufacturing to the Far East and was worried about loss of IP. As the team of internal business people, corporate attorneys, and outside consultants discussed the situation and how not to expose any IP that wasn’t absolutely essential to the manufacturing company the young whippersnapper stopped the meeting and said: “But, … why is this a worry? It says in THE CONTRACT that MANUFACTURER will protect our IP and capture any new IP and give it to us.”
The meeting came to an abrupt halt as everyone stopped talking and looked at the young wipper snapper. A long silence. To which the young wipper snapper said “What?”
What happens in the mind of experienced people when a close encounter of the young wiper snapper kind happens, is that you start replaying the entire meeting and realize that the young wiper snapper has not been on the same page with the team for about 3 hours, and then you make a cost benefit calculation about whether to drop the subject or to retrace your steps back to where the wipper snapper got off track, and re-work the meeting.
Stopping and explaining the specifics of the situation in the Far East is not enough to bring the young whipper snapper back into alignment with the team. The sacred cows are too important, too entrenched in residual self image, to hard to see as blind spots. Anyhow, I’ve tried to do the accelerated Reality injections to no effect. Your mileage may vary but what I get is sacred cow drama.
Sacred cow intrusions are not an experienced v inexperienced thing. Sacred cows may impinge on our individual work, but we don’t often see them there. We really see sacred cow intrusions in our team work.
Sacred cows seem predestined to impinge at the worst possible moments. Say, 10 minutes before the end of a long exhausting meeting. Two minutes before going into a litigation hearing. Or, 5 minutes before sitting down with a very important customer. Or, the day after sending out a law suit.
Sacred cow intrusions are a problem because they frustrate team alignment and spawn side issues and power struggles. Figure 5 is a simple graphical representation of a team where every member has an incipient sacred cow that is frustrating team alignment. Teams with incipient sacred cows don’t get very much done. And, they get to hate every step of the halting progress that they do accomplish. My personal definition of work hell.
Figure 5: Team Dis-Alignment
Source: Senge (1990) p. 235
The second line of defense for these problems is self selection. You worked with person “A” at a prior firm or, in law school. When you came to your present firm, you keep thinking about person “A” being the perfect hire to work with person “C”. The interviews go well. “A” is hired. But, “A” and “C” turn out to not be such a good match. And within 2 years “A” is gone. Person “A” has self selected out of a job.
I’d like to pause here to point out that sacred cow problems are non-transitive. Person “A” and person “B” get along fine. Person “B” and person “C” get along fine. In fact, person “B” is very excited about how well s/he knows both “A” and “C.” Because sacred cow issues are non-transitive, person “B” brings “A” and “C” into contact with confidence of a good outcome. Sacred cow non-transitivity gets us into trouble … with confidence.
Secondly, I would like to mention that this is a very expensive way to herd sacred cows. Rather than detecting and managing sacred cows, we are totally reactive to sacred cows. Especially once a sacred cow comes out into the open and becomes a matter of principle or a personalized disagreement, you basically have game over once the entire team sees that “A” and “C” are at loggerheads.
The third line of defense for sacred cow problems is brain washing. Intense long term indoctrinations. Think IBM sales force. This is an even more expensive way to herd sacred cows.
None of these three approaches are what you would call a sharp tool for dealing with structural interpersonal frustration. And this is a big deal because sacred cow issues are endemic to information work and information work teams.
Information workers of the world unite. We all need to unite to stop when we see the sparks of iron sharpening iron. When these sparks fly, we need to stop and inquire about what the sacred cows are that seem to be butting heads.
We need to unite to self-monitor our sacred cows. And when we really get mad about a sacred cow, we need to force ourselves out of the cow pasture and up to 5,000 feet to take a look at our pasture in the context of pastures around us.
For example, I have 3 sacred cows that I must manage to not irritate Chi Kim and Tom Field. My sacred cows are:
• Get inventors the appreciation, training, and love they need to hatch and become proficient at filling out invention disclosures.
• Picking fights with mindless bureaucracy.
• Telling the truth regardless of cost to me personally.
I come from a long line of truth tellers. And being put to death for telling the truth is a high honor in my family. I have no clue where this came from, maybe we are Klingons, but it is probably why HP jettisoned me once it had achieved its patent rank objectives.
This is me. But while Saint-Gobain wants some of the produce of my sacred cows, it can’t stand sacred cow drama. So, I can’t indulge my sacred cows or I destroy the teamwork I have with Saint-Gobain and collapse the results that teamwork has been able to achieve.
If Tom were my manger, it would be very helpful for him to work with me to articulate my sacred cows and his. And then, to look at the work in the department and try to match my predispositions with the important tasks needed to produce results. If I was working for Tom, I would be wise to monitor my own sacred cows. To stop myself every time I start to draw my ideological swords and reflect on what these impulses are telling me about what I want to be Figure 6: Aligned Team
Senge (1990) p. 235
Finally, it is good to monitor how your sacred cows evolve over time. While maybe every attorney entering practice enters as a young wipper snapper infatuated by contracts, all develop past that phase and develop new infatuations. Watch, monitor, reflect, articulate these sacred cows, and you can manage efficiently and effectively. We do not need brainwashed perfect team alignment. Idea conflict early in team projects is strongly correlated with good results. I think we can basically all get along by self managing and having senior managers match us to our teams. Figure 6 shows what we are after. Dealing with the big sacred cows so that our teams can be substantially aligned.
• Skill #8: Make them feel the love. Work today sucks for the vast majority of people we work with and for. Creative destruction is reengineering our economy, recession is freaking out management, labor, taxpayers, and congress, and home foreclosures are eating up the middle class like it is the great depression déjà vu.
People need encouragement above and beyond the call of duty. And, if you provide encouragement as an invisible extra in your professional service, you will be given opportunities do more meaningful and better work. The trick here is to reverse the old corporate mantra of “Suck up, kick down.” If you blatantly-suck-down to people below, you release dynamic interpersonal forces that are tremendous movers and accomplishers for your organization.
How does sucking down work? Five ways:
• It makes you a safe person to talk to.
• It plugs you into to a more fundamental social strata of your company.
• It is good karma. What goes around comes around so give early and often.
• It draws good people to you like a magnet. Often, these folks work for free!
• It dissolves baggage temporarily, so everyone can see how good things could be.

• Sucking Down Engine #1: It makes you a safe person to talk to.
Initially, you can’t suck down in your chain of command. You have to suck down to people who don’t have to be nice to you. But as a practical matter, you will find that just sucking down to everyone is the easiest way to always get it right. You waste sucking down on bosses because they expect it. And you waste sucking down on your direct reports because they suspect it. But the process loss of just sucking down to everyone is timple and easy to apply.
Once everyone gets over the shock of open communication (6 months to 3 years), watch for little facts that appear and immediately cast shadows on the business processes of your organization.
Example, when I sat down and started journaling about my time at HP after leaving, the first essay I wrote, taught me that I had not discovered any of the business process improvements that I implemented. The down-organization people in the legal department had slipped their ideas to me, and because I was safe, were delighted to see me slam-dunk implement their ideas.
Legal departments can be very fearful places. Careers move slowly. People are smart. Just talking with legal folks can feel like playing a game of chess. Thinkers tend to over think, to forecast the shadows of every word they say. To become more silent as they move up. And to hide enthusiasms over time.
Sucking down helps all this progressive freezing to thaw out so that people can share information more fully. Can drop their defenses. Can speak without forecasting 15 years into the future.
• Sucking Down Engine #2: It plugs you into to a more fundamental social strata of your company.
I learned this lesson in a big way when I was still in marketing at HP. I sucked down to the Macintosh LaserJet driver team. The driver team leader subsequently interviewed for the LaserJet IP manager job and when he got ½ down the job description told the hiring manger “This is not me, but I know who it is. It is Bill Meade.”
Another example is the refinements to invention disclosure processing that legal admins can see would work, but which they don’t get listened to about or thanked for sharing. Admins were always saving me from disaster, and afterwards telling me in plain English what would have prevented the troubles from happening in the first place.
I did not start out on good terms with admins however. For some reason, they thought of me as more work without more pay or appreciation. I was treated coldly and started receiving reports on nasty things they said about me. So, I sucked down to them. I spent $200 of my own money, to have a massage therapist come in to the legal department and give any admin who wanted one, a half hour chair massage.
• Sucking Down Engine #3: It is good karma. What goes around comes around so give early and often.
Good things happen to people who are trying hard to do good. If not enough good things are happening to you, then give some more to prime the pump. This is my formula. People watch you apply the formula and are impressed not that you do this. But that after years, you are still doing this. I think it is a slow-motion infection that is good for everyone.
• Sucking Down Engine #4: It draws good people to you like a magnet. Often, these folks work for free!
Many people seek out the meek. But when you become known for helping the meek, you become something of a platform for a community. At in my life I have gathered super business analysts, super students, super inventors, super enablers, super believers, just a whole lot of what I call a “Zoo” of people who like helping others because it is the right thing to do.
Once you have your zoo of interesting people, you can count on these people to help when you need to build a team, for example, to implement a plan for world domination. These people are low maintenance friends that you just back up with once you get back in contact with them after years. This is handy, because you never know when you are going to need them for a new plan for world domination.
• Sucking Down Engine #5: It dissolves baggage temporarily, so everyone can see how good things could be.
I think the biggest benefit of sucking down is that you can get people to suspend disbelief that their lives in your corporation could ever be better.
Example for this idea is the day I had an invention workshop on-site in Boise. I invited the HP Legal admins to the workshop and as they watched me pitch the inventors and hit the room with the enthusiasm steam roller, something happened. They saw that they were part of a big important cause.
I don’t know if HP Legal admins are different or the same as other companies. But apparently admins can see that they just have jobs moving paper if they are not given the big picture. If they are not invited into the business process as colleagues.
So I think sucking down is a good thing to do to dissolve emotional baggage, cynicism, and get people motivated and plugged in.
Does your area of law have a gift to give people below you in your organization? Have you ever thought about it? The best way to suck down is to plug in to people, to package your gift so that it is easy to understand and take advantage of for an average person. Then, to enthusiastically listen, so that you can understand, and then help.
• Skill #9: Mine incipient demand. As a law outsider and marketer, I have to tell you that I’m amazed at how small the reached market for legal services is. Figure 7 is a venerable market structure framework that provides a way to articulate the areas of growth I forecast for the legal profession.

Figure 7: Market Structure Framework
Weber (1977) p. 36
The most important gaps in corporate legal departments today are usage gaps, distribution gaps, and product line gaps. Competitive gaps are not relevant intra-firm and own-sales gaps are basically moot issues within a firm. Management asks, and it receives. Reviewing market structure gaps is a good exercise to think through. You may want to assign some legal department homework to get people thinking about the gaps your organization has in serving its customers. I’ll briefly step through some gaps that I’ve seen between clients and legal departments below, hopefully this will kick start some ideas.
Legal Usage Gaps:
Usage gaps are areas where the legal department has incipient demand. The problem with giving customers what they ask for, is that you are directed towards the client’s wants. When serving wants, we often entirely miss the client’s underlying needs. For example, in small divisions that do not yet have established relationships and assumptions about appropriate integration of legal and business logic, managers don’t yet know to ask for legal support. They don’t ask you for anything. Tick … tick … tick …
Another want-based problem is that in established divisions with key management people that despise lawyers (ugly divorce) the legal departments won’t even be asked for services that it knows it should be hearing about.
In aggregate, I think litigation has a dramatic usage gap. For example, how many federal appeals courts are there in the US? Why is there only 1 appeals court for patents? My answer is because there is a huge usage gap. Transactions costs definitely limit the number of firms that can afford to litigate. But I don’t think that transactions costs explain the number of firms that do litigate. As true IP management escapes from its birth-place in the semiconductor industry into more areas of technology and geography, we are going to see much more patent litigation. The firms that see this coming will be able to obtain first mover advantages in their markets.
Legal Distribution Gaps:
Distribution gaps are where the legal department has insufficient liaisons to the loci of legal problems. A simple distribution gap problem for attorneys can happen because an attorney is working with too few client division contacts that are too high up, so business person decisions are not subject to sufficient scrutiny and once a decision is made, a big legal screw up can become embedded down the organization or in a foreign corresponding division.
I think there are basically 3 approaches to reducing distribution gaps:
• Get attorneys into client offices (pretty low down)
• Get clients into attorney offices
• The C word
Alternative #1: Taking attorneys out of their offices to tour facilities and press the flesh with the client population is hard. It may seem expensive to management. It may seem exasperating to the attorneys. It may seem disorienting to the clients until a critical mass amount of communication can take place. Probably all of the above. Japanese companies use cross company rotation to great impact competitively, I believe that legal departments can create the same kind of competitive advantage by rotating attorneys into clients so they can learn by osmosis. Reducing the distribution gaps should increase protection dramatically for a small incremental cost.
Alternative #2: Rotate clients into the legal department and then across legal functions. Hourly wages probably make this alternative more affordable for large corporations. For example, you could pick people on a product management career path or a negotiation career path in your divisions and then give them a 1 year rotation through your legal office where they get to taste litigation, transaction work, IP, HR and whatever other functions I’ve just insulted by not mentioning.
The paybacks from decreased distribution gaps in legal should come in the form of reduced total litigation, reduced bumpiness in litigation, and perhaps an increase in joint ventures.
Alternative #3: Consultants. As an outsider to patent departments I act as a liaison between technical and often business functions, and corporate legal departments. Being a non-threatening odd-ball helps. My role as a consultant is to be a catalyst between the client and legal department. Catalytic things I do are to help with suggestions on refining business processes, coaching to provide feedback on quality to inventors, coaching on how to gently provide feedback to inventors, and providing analytical frameworks like the one above, that guide problem solving and problem finding.
Legal Product Line Gaps:
As an outsider observing legal departments, I have to tell you that there is a deep nearly impenetrable penumbra cast by courts on the product lines legal departments have to offer. The penumbra is so pervasive, ideas that do not fall within conventional court use, are often denied by legal departments. Denied out of existence.
For example, one of the problems of my working life is too many invention disclosures. In particular, too many good or great invention disclosures. I spend a lot of time thinking about how to help IP organizations who have more invention disclosures than they can productively employ, employ disclosures that they can’t afford to patent and which don’t make sense as trade secrets.
For example, think of a startup with lots of high output inventors, but with worries about making payroll that keep it from filing patent applications. This hypothetical startup is worried about a patent suit that has been filed against it, and it has no counter ammunition, even though it has great inventors.
One alternative for this startup is “offensive publication.” This is the opposite of defensive publication, which is usually undertaken preemptively to destroy patentability of an idea and prevent in-bound litigation. Offensive publication uses invention aimed in-bound to a competitor, to destroy patentability of the competitor’s best selling products.
Offensively publish against a competitor would be a three step process.
• Step 1: Have an invention workshop around 1 and 2 generation out improvements to the competitor’s existing best-selling product.
• Step 2: Select 1 or 2 of the best improvement ideas for that product, and file them as patent applications.
• Step 3: Create a defensive publication book of the improvements and send the book to the competitor’s general counsel.
With very little cost, this new product: offensive publication, has just done something creative in both the litigation and patent space. It is just a friendly shot across the bow. But you get an “Oh crap!” from both the general counsel and the patent counsel of the competitor. If you want it to be truly nasty, then you send a second copy of the defensive publication book to the general counsel 3 months later and tell him/her “Oh by the way we’ve filed on some of these.” And you get a second generation “Oh crap” as the competitor realizes you have laid a patent mine field around their best selling product.
Now, for all I know, you have been doing this forever and it is old news. However, it is my observation that not many organizations are using this strategy to learn how it works, when it works, where it works, and on whom it works. This strategy appears to me to be a legal product line gap opportunity.
But, the responses I hear when I pitch this to legal organizations is:
• We can’t throw out good ideas by defensively publishing them!
• That’s crazy.
• You are not a lawyer.
• The kiss of yes. “Yes, Bill we’ll get right on that! Ha ha ha.”
• You are not a lawyer.
It has been a long time since I’ve had a logic class, but frankly I was expecting more constructive engagement from attorneys. What I was expecting to hear was:
• That won’t work because of <insert specific reason here>.
• Crap, you are right, how can I run the legal pipes backwards and generate some new-to-the-world alternatives for my organization!!
There are a lot unconventional uses of IP that are dramatically underutilized for how productive they may be. Other examples I’ve thought of beyond offensive publication:
• Intellectual property anti-matter:
For example work with the Linux community to provide online tutorials on how to write excellent invention disclosures (how about an invention disclosure with claims???) that are automatically defensively published. A functioning technical community like Linux has, could take out huge swaths of patents if it pursued an IP anti-matter strategy over 10 years.
• Own-Patent claim charts on own-product teardowns
The problem with showing a potential licensee a claim chart on their best selling product is that you start all these inconvenient timers ticking. If you teardown your own product and show your own patents, they can get the idea without inconvenient timers.
• IP created by contract:
If we were truly diligent about capturing know how, i.e., the stuff that runs out business whether it is patentable or not, we would have a database of techniques that could interlock with our employment agreements to provide patent-like cease and desist negative rights. For example, the techniques are drafted with claims. The claimed techniques are then “briefed” to employees on a periodic basis. IP databases that support this kind of business process are beginning to appear, for example Innovation-Asset-Group’s system which acts as an SAP-like system for intellectual property from disclosure through licensing. Then, when an employee leaves and starts a competitor, even if you can’t stop them with patents you’ve got them with trade secrets on amphetamines.
Ok, we’ve had too many IP examples. I apologize. But now, let’s assume there is a product line gap in the area of HR law. Litigation. Transactions. How can these areas of laws be gracefully degraded to produce some new-to-the-world tools for your company? Attorneys are always using their brains against the idea of product line gap. Just suspend your disbelief for a second, what could you that would earn you the shock of your peers?
When your clients realize that your understanding of their legal needs is deeper than what they are asking you for, they will start making you feel the love. The foundation of a powerful professional relationship with knowledge work clients is having a deeper understanding of needs than the customer. And I believe deep understanding of needs in corporate legal services lives in usage gaps, distribution gaps, and product line gaps.
• Skill #10: Empty Your Mind. How many people here remember seeing a plate spinner on the Ed Sullivan show? Please raise your hands.

The Ed Sullivan show ran from June 20, 1948 through March 28, 1971. So I was anywhere from -11 to 10 years old while the show was on the air. I remember watching in horror as the plate spinner began loosing the battle to keep the plates from falling. Breaking a plate (or other disorderly conduct) was a capital offense in my household. Maybe because of the horror, the memory stuck. Or maybe, because plate spinning is a metaphor for modern adult life it stuck. I don’t know. But I do know we are all trying and failing to spin too many plates. I feel the horror of watching those plates wobble on the sticks every day. My personal problems with plate spinning began in Figure 8
Source: Wikipedia
Figure 9
Source: Wikipedia
Academic norms built up in a time where information was relatively scarce. For example, look at Figure 3, this is a picture taken in a chained library. In chained libraries in the middle ages books were attached to their bookshelves with chains long enough to allow reading, but short enough to keep the books in the library. In such an environment it makes a lot more sense to call professors “readers” as English universities do. When the library books are all in the library, and when the books are limited in number, reading them and mobilizing their information with a brain makes sense. But in the information age where you can hold more information on your laptop’s hard disk than a library can contain, where you can access more information on the internet than all libraries contain, and where there are more books written about important narrow areas of research (like biographies of Henry Ford) than you can read in your lifetime, traditional academic norms of exhaustive knowledge are nonsense on stilts.
Figure 10: “Free Your Mind”
Source: The Matrix, 53:52
Question: Mr. ivory tower consultant boy, how can we free our minds when we don’t even have time to think?
Answer: With a better information processing architecture.
Getting Things Done by David Allen is not a book I wanted to read. I did not have time to read GTD. I did not have the energy to read GTD. I was seriously in danger of plates falling.
But, somehow, I struggled through it. Using an Audible.com audio book, I listened to GTD while riding my bike. Aside I’ve found that I’m able to read 3x to 5x the number of books on my bike that I can read in my office. Audible.com is a force multiplier if you do exercise and your mind demands feeding.
The components of GTD for me, are as follows:
• 1 Piece of paper, 1 idea
• Get all your action items in 1 place: Your In-Box
• Note It is important to separate the gathering of action items, from doing of action items.
• Process your action items into buckets
• Reference Files (http://www.evernote.com)
• 2 Minute or Less, Single Issue Action Items
• Projects (>1 Issue Action Items)
• 1 page that lists all of them
• 1 folder for each project
• Delegate-able Action Items or Projects
• 1 page for each delegatee with all their action items and projects
• Calendar future tickle
• Trash
• Do “natural project planning” don’t care about what other people think.
• Review your project list every morning first thing
• Manage projects to keep them in focus – plan only enough for each project to get it off your mind (GTD p. 77)
• Biggest lack in project management is simple brainstorming about the project. Do simple brainstorming to get project off your mind.
• Getting your ideas on paper, and the paper on your desk where you can see them all while you are brainstorming, will allow your brain to release you from spinning all the plates.
• Manage your brain, not your jobs.
GTD is important because it provides a workable alternative to unrealistic academic norms of plate spinning. I get more done using GTD, I’m more pleasant to be around while doing things, and I’m not side tracked on distractions and irrelevant tasks, ever.
I’d like now to give you a demonstration of how I think each of the information architecture components would work for an attorney.
• 1 Piece of paper, 1 idea
One idea, one piece of paper is the key to walking away from plate spinning. When you have a log book or a lab notebook with all your action items inside, the book form prevents you from being able to see just the action items related to 1 project. Books trap action items into an ordered jumble as far as your brain is concerned. Unless, you are disciplined enough to go through your books and extract the action items and ideas and put them on separate pieces of paper at a later time. So, since starting to use GTD I’ve stopped using lab notebooks. I find it is easier to write things down one time, and then shuffle cards in and between folders as I use and re-use ideas.
There has been competition for my idea capture been between letter-sized paper, which is what I started using, and 3” x 5” cards, which I picked up using while traveling and have not been able to put down. Mostly the cards are winning because they are more portable and more easily shuffle-able.
For every idea you write on paper, you take one plate off a stick. After I had written about 300 ideas on paper, I began to be able to write and get published again. Too many plates on sticks whirling in my brain meant that I had a new kind of writer’s block. Too many ideas to be able to put down a simple narrative. Once my brain saw that I was capturing ideas and then reviewing them regularly enough, my brain stopped trying to spin the plates, and it gave me back a sense of creativity and renewed sense of wonder in the work I am doing.
What I’ve found as I’ve implemented GTD over the past 6 months is that I go back and forth between paper-based information management, and electronic. My work moves back and forth as I have to travel and as paper is convenient (when ideas are jumping back and forth between projects). I love computers, I have a wonderful GTD program called Omni Focus, but cards are where the ideas get captured and shuffled most easily. Once a project settles down, then I can trap the project in Omni Focus and track it step by step.
• Get all your action items in 1 place: Your In-Box
Dread. When you think about implementing GTD, you will obsess on all the junk from your life that you are instructed to dump into your in-box. You will procrastinate because of dread. I started GTD not with all the junk in my life, but just with important stuff in my inbox. When I started, I put the 3-tier paper sorting box back on my desk. I use my top box as my inbox. I use the middle box as the in-office storage for my project folders. And I use the bottom box as a place for blank letter sized paper.
Your inbox will pile up. But the only worry you will have is about not letting yourself DO any of the items that go into the inbox while you are gathering items.
• Note It is important to separate the gathering of action items, from doing of action items.
DO NOT DO is such an important point I’ve made a separate point out of it. Do not do is the razor’s edge over which you can not hesitate. You must gather without doing in order to be able to arrive at your GTD starting point. If you yield to temptation, if you allow yourself to do, you will be lost to the sirens of distraction, interruption, and management by attention deficit disorder. The first step is not to do. The first step is merely to get all the needs-to-be-done items (David Allen calls these “open loops”) into 1 place where they can be processed like any other raw material.
After you have gathered all your un-done, your un-dead action items and open loops, you are ready for the next tool.
• The process tool, takes un-done open loops, and puts each open loop into an appropriate buckets. Again, DO NOT DO any of these items, again, you need to separate doing from processings. Processing consists in taking open loops, and putting each open loop into 1 of 6 buckets.

• Bucket #1: Reference Files (http://www.evernote.com)
GTD assumes that you will use old-fashioned manila physical file folders. I have found that Evernote works better for me. The GTD rules of physical files are:
• Keep reference files out of sight
• Keep project files in sight
• Use a single A to Z filing system for everything in your reference files
• Separate your reference files from project/working files

This is actually a pretty big deal. There are 2 universes in which you work: projects, and reference. If the material you are looking at isn’t immediately applicable to a project, then it is reference. Simple really.

• “Don’t cross the streams” of reference and project files
What has worked for me was to buy a Fujitsu Snapscan scanner and scan all my files into Evernote. Files that have non-scanner-encapsulate-able items I keep as files, but I take pictures of the items with a web cam so the file in Evernote shows the objects in the file folders.
The first thing you will discover as you focus on having a workable reference filing system is that it is SUCH A RELIEF to have reference files. At long last I have a place to put all the stuff that was too good to throw out, but not good enough to use.
David Allen says (GTD p. 45) that not having a working reference filing system is one of the most frequent oversights in organizing work, that knowledge workers make. And, he says that setting up a working filing system is one of the biggest single points of improvement for people applying GTD. This has been true for me. If you don’t have a working reference file system, then the most important thing I’m going to tell you today, is to invest in some sanity and set up a working filing system.
My in-box went from 871 emails, to zero. My @Action folder went from zero messages to 38 messages. The difference was having a reference file system to put some (about half) of the 871 messages in. 850 messages is a lot of extra ballast to carry around for 38 action items! This impressed me with the gains to be had by simply reorganizing how I’m doing work.
The biggest problem in implementing the GTD architecture of information processing is the dichotomy of email vs. files. Most information comes in through Outlook and either needs to live there, or it needs to be printed and put in manila folders. There is no simple way to do A-Z filing in an email program. There is a book Take Back Your Life! on using Outlook to get organized. So, there may be hope for Windows users there.
Figure 11
Evernote has extensive search capabilities, so you get searching of your files for free, but I have found with the simple A-Z organization, I don’t need to very often.
For project materials I’ve found that adding 2 mail boxes (@Action and @ReadReview) to my email program has pretty much allowed me to implement GTD for the first 6 months. I started out by adding all the email boxes that David Allen recommends, but I found I did not use them, and so I deleted them (while writing this talk).
Within the @Action mailbox I have mailboxes for key clients (Saint-Gobain), projects (iCapture, a BasicIP software program for capturing invention disclosures from iPhones), and for important business contacts (blurry, blurry, and blurry).
• Bucket #2: 2 Minute or Less, Single Issue Action Items
The most practical main bucket for simple 2 minute items is @Action in my email. The other place I put action items is on 3” x 5” cards in my inbox. I find that I like keeping all my 3” x 5” cards for projects in flux, in my physical inbox. Then I go through them 2 or 3 times a week spreading them out on my desk and gathering them into piles related to single projects.
• Bucket #3: Projects (>1 Issue Items)
• 1 page that lists all of them
Having a project folder that has a 1 page list of all your projects is invaluable for releasing your brain from plate spinning. This 1 page summary can be on 3” x 5” cards or letter paper or electronic. Your brain does not care, what it does care about is that you have captured all the ideas it knows are important, into a place where the ideas will not be lost.
• 1 folder for each project
• Bucket #4: Delegate-able Action Items or Projects
• 1 page for each delegatee with all their action items and projects
• Bucket #6: Calendar future tickle
• Bucket #7: Trash
• Do “natural project planning” don’t care about what other people think.
• Review your project list every morning first thing
• Manage projects to keep them in focus – plan only enough for each project to get it off your mind (GTD p. 77)
• Biggest lack in project management is simple brainstorming about the project. Do simple brainstorming to get project off your mind.
• Getting your ideas on paper, and the paper on your desk where you can see them all while you are brainstorming, will allow your brain to release you from spinning all the plates.
• Manage your brain, not your jobs.
Summary: Things that bring relief from spinning plates
• One idea, one piece of paper. Don’t loose the papers.
• Most important ideas are “next actions”
• Breaking knowledge work into specialized tasks.
• Natural project management, especially simple brainstorming.
• Empty in-box
• Neatly labeled manila folders
• A program that has as its ONLY job, to track to-do-items.
• Reviewing then using your instinct to select next actions throughout the day.
• Not building throw-away ToDo lists every day
Bibliography:
Dietrich Dörner (1996), The Logic of Failure, Reading MA, Addison Wesley.
Andrew Grove (1996), Only The Paranoid Survive, NY Currency Doubleday.