Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

Bruce MacEwen has been blogging long and well over at Adam Smith, Esq. He typically writes about law firm management, and his target audience is senior lawyers at large firms. Recently, however, MacEwen published a post about an award that Kraft Foods gave to Clifford Chance for innovation in delivering legal services.

Apparently, Clifford Chance helped Kraft’s legal department with its knowledge management issues. Clifford Chance had experience in knowledge management; Kraft did not; Clifford Chance helped Kraft to create a series of blogs and discussion boards in which Kraft’s in-house legal department will share information. MacEwen provides this example:

“Kraft, as you know, is a global consumer food services company . . . which means they generate their own specific variety of legal questions, such as ‘what food-like items are subject to VAT in various countries around the world?’ Food is largely exempt from VAT, non-food subject to it. Kraft sells some products, such as chewing gum, which are on the border.

“If you post that question on a discussion board, and get responses from around the world, you have the beginning of a knowledge base on VAT incidence on quasi-food items. And of course it’s also recorded for posterity, at least in theory never needing to be answered again.”

This type of knowledge management is surely a good idea. But I’m going to go out on a limb here and predict that only one of the two tools that Clifford Chance helped Kraft to create is ultimately going to prove effective. Which one, you ask?

The internal blogs, intended to prompt lawyers to draft posts that share information with each other, will fail.

There’s just too little reward, and too much risk, associated with blogging for the edification of your legal colleagues.

Let me start with an analogy. Back in the early ’90’s, before word processing systems captured all information in a word-searchable form, I was startled to learn that the large firm for which I then worked did not have a computerized brief bank. With about a zillion lawyers drafting briefs on every issue known to man, surely the firm would save its lawyers a lot of time and its clients a ton of money if the firm captured its collective work product in a useful way. A lawyer could then start work on a new brief by reviewing examples of briefs on the same subject recently filed by colleagues.

To fill that need, we created the database needed to collect briefs and asked lawyers to contribute their work product. We told lawyers to eliminate briefs that (1) would be useless to others (such as a brief in support of a motion to change a deadline in a case, which cited no case law and was entirely fact-specific) or (2) contained client confidences and were subject to protective orders. Other than that, we told the gang, just check the box to have the brief duplicated for the brief bank, and we’d soon have a vast, helpful database.

What happened? Essentially no lawyer would mark any brief to be included in the database.

Why not? Because there was essentially no upside to contributing briefs, but there was the potential for dramatic downside. If you added a great brief to the database, no one would call to praise you or circulate a memo to others explaining that you produced top-notch work. But the opposite was not necessarily true. Suppose you added a brief that overlooked or misstated a legal proposition. Later lawyers reviewing your work would notice the error and might not be kind. You would actually like the later lawyer to remove the bad brief from the system, but you couldn’t be sure that the repercussions would end there. The later reader might tell others that your work wasn’t any good or might circulate your bad brief to others within the firm, with a cover note pointing out the mistake. Reasonable people did the reasonable calculus: Few lawyers designated briefs for the brief bank.

(We ultimately solved this problem by using the firm’s “docket department” to capture briefs. Back in the ’90’s, you had to send a brief through docket to have it delivered to court. We told the folks in docket to capture every brief that (1) was more than three pages long and (2) wasn’t stamped “confidential.” By taking lawyers out of the picture, we were able to create a fairly substantial brief bank reasonably quickly.)

I predict that the same problem will plague Kraft’s effort to create internal blogs in the legal department. Drafting blog posts takes a lot of time and effort. If you publish posts that are pristine and completely accurate, others will be happy to reap the benefits of your work. But, if you publish a post that misstates something, you may never hear the end of it. Reasonable people will do the reasonable calculus: They will not expend great effort to put themselves at personal risk.

When lawyers blog for the world at large (such as here at Above the Law or on the Drug and Device Law Blog from my former days in private practice), the risk-reward calculus is different. On a blog aimed at the general public, if you say something that’s wrong (or that amused you, but doesn’t amuse one of your colleagues; or that someone thinks could potentially offend a client), you’ll still take grief. But at least there’s some upside to blogging for the public: You raise your personal (and the firm’s collective) profile, attract other media attention, draw new writing and speaking opportunities, and potentially develop new business. It’s worth a little risk when you perceive those benefits. But writing a blog for an internal audience? Call me a pessimist, but I can’t believe it will work. (If I’m wrong, and if you know of examples of successful legal blogs being used internally at firms or in corporations, please post a comment or send me an e-mail. I’d be interested to learn of the environment that permits those projects to work.)

I also predict, however, that Kraft’s experiment with discussion boards will be more successful. Typically, at either a law firm or an in-house legal department, if you send an e-mail asking your colleagues if they have experience with a subject, knowledgeable people will respond. Call me an optimist, but I think many people are naturally helpful and, when asked a question about something they know, they’ll volunteer an answer. And I’ll guess that this will work in the context of discussion boards. Posting a short sentence or two in response to a particular question takes far less effort than drafting blog posts, doesn’t require you to gin up subjects about which to write, and may be perceived as helping to create a useful tool for your community. There’s still some risk involved in speaking publicly on a discussion board, but the risk is minimized and the collective benefit is more obvious.

So how do we test my predictions? Perhaps we can entice Bruce MacEwen to return to Kraft a year from now to see how the new experiments with knowledge management are going.


Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law.

You can reach him by email at inhouse@abovethelaw.com.


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