MARCH 2006 – VOLUME 7, NUMBER 1 IN THIS ISSUE

Recruiting and Retaining Litigation Support Staff – p. 1A senior consultant suggests better ways a law firm can recruit—and retain—superior litigation support personnel tailored to fit the firm’s unique needs.

Conflicts: Challenging Career Opportunities for Law Librarians – p. 4

A Profile of Kristen McManus Powers, CareerDevelopment Manager at Arnold & Porter – p. 6

Law Firms, Copyright, and the Copyright Clearance Center – p. 8

PracticeInnovations

Managing in a ChangingLegal Environment

Three editions of Practice Innovations are published each year.

March 2006

Communicating best practices and innovations in law firm information and knowledge management to legal professionals.

Editors in Chief

Austin DohertyDirector, Information Resource CenterHogan & Hartson L.L.P.Washington, DC

William ScarbroughDirector, New York IntegrationBaker & McKenzie LLPNew York, NY

Editorial Board Members

Janet AccardoDirector of Information ServicesSkadden, Arps, Slate, Meagher & Flom L.L.P.New York, NY

Silvia CoulterManaging PartnerCoulter Consulting GroupBoston, MA

Cindy DiamondAssistant Director, Research and ServicesHogan & Hartson L.L.P.Washington, DC

Lisa KellarSenior Practice ConsultantHunton & Williams, L.L.P.Washington, DC

Kingsley MartinSenior Director, West kmThomson EliteChicago, IL

Nina PlattDirector of Library ServicesFaegre & Benson L.L.P.Minneapolis, MN

Al PodboyDirector of LibrariesBaker & Hostetler L.L.P.Cleveland, OH

Linda WillDirector of Information ResourcesDorsey & Whitney L.L.P.Minneapolis, MN

Please direct any comments or questions to either of theeditors in chief:

Editors in ChiefAustin DohertyHogan & Hartson L.L.P.555 13th St. N.W., Rm. 10W100Washington, DC 20004202.637.8701 (voice)e-mail: radoherty@hhlaw.com

William ScarbroughBaker & McKenzie L.L.P.1114 Avenue of the AmericasNew York, NY 10036(212) 626-4825 (voice)e-mail: william.p.scarbrough@bakernet.com

Managing EditorEileen Gonyeau, J.D.Thomson/West610 Opperman DriveEagan, MN 55123-1396651.687.5497 (voice)651.687.8722 (fax)e-mail: eileen.gonyeau@thomson.com

The trademarks used herein are the trademarks of their respective owners. West trademarks are owned by West Publishing Corporation.

© 2006 West, a Thomson business. Printed 03/06. Material #40491311L-320287

1

AT A GLANCE: Litigation support staff havingboth technological skills and legal knowledgeare an important component of the successfullaw firm. A senior consultant suggests betterways a law firm can recruit—and retain—superior litigation support personnel tailoredto fit the firm’s unique needs.

By Conrad J. Jacoby, Esq., Senior Consultant, PotomacConsulting Group, Arlington, VA

Competent staff is a critical part of every litigation support operation. Specific toolsmay offer valuable functionality, but without people who can use them correctly, eventhe best tools can cause more harm than good. Conversely, a seasoned litigation sup-port professional can generate amazing results with even rudimentary resources.

Unfortunately, it has never been easy for law firms to find—and retain—litigationsupport staff. Not only must these professionals have the right mix of technologicalskill and legal knowledge so that they can match solutions to a given project, theymust also be able to work well within the culture of their law firm. Someone withdeep expertise can still be the wrong person for a specific position.

Competition for the most skilled litigation support professionals is fierce as more andmore law firms and vendors compete for the same small pool of top talent. Law firmsoffer increasingly large signing bonuses and other incentives to snag good lit supportanalysts, but staff turnover remains high as rival organizations offer even greater com-pensation packages. It’s like a game of musical chairs with too many chairs and notenough players.

This article suggests several considerations for law firms and law departments that arestaffing litigation support positions. While many focus on recruiting, it is equallyimportant to consider ways to keep valued employees happy so that they are lessinclined to leave for another position.

continued on page 2

Recruitingand Retaining

Litigation Support Staff

“[L]aw firms should focus

on finding someone

who can help the firm

meet specific litigation

support needs.”

2

Recruiting Tips

1. Understand Law Firm NeedsIt may seem patently obvious, but different law firms—and practice groups within lawfirms—need different types of litigation support resources. Surprisingly, however, manylaw firms do not take the time to understand, much less articulate, the exact litigation sup-port assistance that they need. Instead, these firms circulate a generic job description that:(1) solicits candidates with X years of experience; (2) suggests that the work environmentis dynamic and challenging; and (3) promises that the salary will be commensurate withskills and experience.

Generic job descriptions do a poor job of communicating why a law firm would be aninteresting place to work. Moreover, unfocused ads provide a poor checklist for both lawfirm and job applicant to understand whether each is right for the other. Vaguely definedperformance expectations also make it difficult to gauge ongoing performance after a per-son has been hired.

Job descriptions, whether associated with recruiting or ongoing performance reviews,should concretely describe what a litigation support professional will be doing. The jobdescription should explain what level of proficiency is required for any specific software

programs and whether the employer will provide training for an otherwise-qualifiedapplicant. Management responsibilities should also be clearly articulated. Does the

position require drafting budgets, approving or supervising other employees, andnegotiating vendor contracts? Enunciating job duties makes the position come

alive—and lets job applicants better understand expectations.

2. Recognize the Need for SpecializationRecruiters and some law firm H.R. departments often post job notices that

demand proficiency or certification in all major litigation support productsacross the full spectrum of litigation support services. Such candidates do not

exist. Indeed, ads seeking universal litigation support expertise signal that a prospec-tive employer does not understand litigation support. Top-notch job applicants generallydo not respond to these types of advertisements.

Instead of seeking someone qualified in all aspects of litigation support work, law firmsshould focus on finding someone who can help the firm meet specific litigation supportneeds. For a firm that has very diverse needs and limited technical resources, the mosteffective litigation support professional may be a skilled project manager who coordinatesoutside contractors to ensure that litigation support tasks are completed on time and with-in budget, but who does not personally do technical work. More commonly, though, a lawfirm will find that it has significant needs in a particular area, such as database adminis-tration or trial presentation, with lesser needs outside that area.

Recruiting and Retaining Litigation Support Staff continued from page 1

3

Retaining Existing Employees

3. Appoint an Ombudsman to Resolve InternalCompetition

The better a litigation support group performs, the more work itwill be asked to do. Eventually, good groups reach a point wherethey receive more service requests than they can answer. Howshould they decide what to do when two shareholders in the firmdemand 100% of their time for urgent projects?

One effective way to manage conflicting requests for litigation sup-port resources is to have someone outside the group serve as amediator who can also authorize additional resources in times oftrue crisis. Excellent candidates for this function include a seniorlitigation attorney, the office manager, or even the managing part-ner of an office.

How does an ombudsman help retain staff? Many litigation sup-port professionals become frustrated when they are blamed fortheir inability to complete impossible amounts of work underunreasonable deadlines. Reducing this common source of stresswill have a direct impact on job satisfaction.

4. Develop Advancement Opportunities for LitigationSupport Professionals

Litigation support professionals often change jobs because theybecome bored with their existing position. Few law firms have a sufficiently large litigation support group to permit more thanminor changes in responsibilities over time. Further, high-levelanalysis cannot take place unless a firm foundation is in place.Laying basic building blocks—and reserving the time required to do so—will always be part of every litigation support profes-sional’s job.

On the other hand, career advancement is not measured solely bytitle. Litigation support professionals can also advance throughprofessional development opportunities. Law firms can pay for lit-igation support professionals to become certified in the softwarethat they use in their work. Firms can send litigation support staffto professional conferences. Inside a law firm, litigation supportprofessionals can be invited to participate in pro bono cases or usetheir information management skills in a different context, such as

helping develop intranet content or better implementing databaseswithin a firm library.

Professional development benefits the law firm directly and indi-rectly. First, better training will help a firm’s litigation supportprofessionals offer more efficient service and better approaches tocompleting projects. Second, highly trained litigation support pro-fessionals are a strength that can be directly marketed to clients.Third, providing variety within a position helps keep professionalsinterested in their work.

5. Treat Litigation Support Professionals with RespectLitigation support combines elements of technology, resourcemanagement, and the practice of law. As a relatively recent careerpath—one old-timer used to joke, “No one ever intends to go intolit support.”—few people outside the profession understand thevalue that litigation support professionals add to a litigation team.As a result, many attorneys—as well as paralegals and secre-taries—view litigation support professionals as little more than I.T.or office services staff. In fact, top-notch professionals have exten-sive training, years of experience in the legal industry, and canoften add valuable insight into how a legal team can help processdiscovery materials and get ready for trial.

Letting your litigation support group know when you think theyhave done a particularly good job costs a law firm nothing, butmakes an enormous difference in how these under-appreciated and overworked professionals feel about their current position. A happy employee is far less likely to consider other jobs than disgruntled employees who do not feel connected to their current employer.

ConclusionLaw firms should always expect litigation support staff to changeover time. However, better managing these hard-working profes-sionals can greatly reduce turnover. Firms may also receive a lesstangible benefit. Litigation support professionals are tightly net-worked, and a law firm that has a reputation for treating theseemployees fairly and with respect is much more likely to attractbetter job applicants than a firm that is known for churning its lit-igation support department.

4

The increase in the size and frequency of law firm mergers, and theease of lateral movement by attorneys, has created a need for moresophisticated conflicts checks and talented people to manage andconduct the checks.

I – Large Law Firms: Some Recent HistoryThe rapid growth of large law firms within the past few years,including the merger of a thousand-attorney firm with one of com-parable size, would have been difficult to predict ten years ago,maybe even five years ago.

We’ve watched a major U.S. firm (Rogers & Wells) do theunthinkable and merge with a major British firm (Clifford Chance)and we’ve seen Piper Rudnick, itself a result of a large merger, joinalmost simultaneously with two separate firms (DLA and GrayCary) to form a global behemoth of three thousand attorneys.

This rapid consolidation mirrors similar consolidation in the cor-porate world and often reflects the loss of a key client as a resultof a corporate merger. If too many key clients are lost through cor-porate mergers/acquisitions, the law firm may even disappear.

At present, there are more than a handful of large law firms withthousand-plus attorneys, and if that isn’t too daunting, we arebeginning to see firms with 800-1000 attorneys looking to mergewith firms of a comparable size. With the redefinition of a large lawfirm occurring before our eyes, one wonders where will it all end?

Some experts believe such large-scale mergers will inevitably cometo a halt due to irreconcilable conflicts of interest, but I am gettingbeyond the scope of this article. For now large law firms continueto expand, whether through lateral hires, mergers, or a combina-tion of the two approaches.

AT A GLANCE: Mergers are creating ever-larger law firms with ever-larger conflict management dilemmas. Who yougonna call? How about a law librarian.

By Robert S. Stivers, Director, Library and Records Services,Kilpatrick Stockton LLP, Atlanta, GA

Conflicts:Challenging Career

Opportunitiefor Law Libr

II – Conflicts and Risk Management/Loss PreventionThe movement towards ever-larger law firms, spanning the globein multiple offices, and being connected 24/7 has added a newdimension to risk management for law firms. The appetite forgrowth found in many law firms is usually met by the counter-vailing challenge of conflicts, i.e., determining whether significantconflicts exist among the merging firms’ individual lists of clients,and if they do exist, whether a reasonable resolution of the poten-tial conflicts can be reached, so the proposed merger can be

completed. If too many potential conflicts are discovered inthis preliminary stage, then the proposed merger is likely tofall of its own weight.

Traditionally law firms have had a dual focus when it comesto conflicts—business conflicts and ethical conflicts. The two aredistinguishable and each type ofconflict can create headaches forthe parties involved.

An illustration of a business conflict is fairly simple. Most businesscompetitors (Coke and Pepsi; Home Depot and Lowe’s) wouldn’twant the same law firm representing them, even if they never cameto legal blows. There’s simply too much at risk. This hasn’t stoppedlaw firms from attempting to represent competitors, often by han-dling different aspects of their legal work and using different teamsof attorneys. Generally, however, competitors will seek separatelegal counsel, understanding that it is in their best interests.

One example of an ethical conflict would be a situation in whichan attorney attempts to represent both parties involved in a mat-ter. While the parties involved may waive any objection to the dualrepresentation, such a course of action is generally frowned uponand may lead to unanticipated problems later in the matter.Attorneys are constrained by professional rules of conduct and cansuffer severe consequences if they ignore the rules.

Clients of a law firm were once thought to be the clients of the firmand not of the individual attorneys who constituted the firm.Conflicts, while a challenging aspect of adding new clients to afirm’s practice, was only a small part of the process then.

This view has changed dramatically over the past forty years. Today,there is more association of a client with a specific attorney or groupof attorneys, and less association of a client with the institution (thefirm). Certainly the dramatic increase in the lateral movement ofattorneys from one firm to another reflects this change. The increas-ing emphasis on attorneys having a book of business, which theywill bring to a new firm, has affected the role of conflicts.

As attorneys move from one firm to another, either laterally or aspart of a merger, the challenge of avoiding conflicts, either businessor ethical, between existing clients and new clients increases. Someconflicts may be unavoidable and the challenge will often be toidentify and where possible minimize the potential adverse impactof such conflicts. As a result some large firms have pulled the con-flicts process under the wing of its risk management or lossprevention team, where the care and nurturing of the conflicts staffmay be better addressed.

III – A Role Fit for LibrariansAs growth and lateral movement has forced large firms to expandand develop their conflicts staff, it has also created career oppor-tunities for law librarians and anyone else interested in the uniquechallenges posed by the conflicts process.

The staff in the merging firms who are assigned to compile andanalyze the list of potential clients are typically the Conflicts staff.Members of this team—searchers, analysts, and perhaps a manag-er or supervisor—have often been recruited from otheradministrative areas of the firm, e.g., Records or Accounting,where critical information regarding the firm’s clients is gatheredand retained.

5

continued on page 12

“[F]irms have recognized that the

conflicts process lends itself to the skills and

talents possessed by many librarians.”

sarians

6

Professional Development (PD) initiatives have become standard practice in law firms thatrecognize an effective PD program is a means to fostering strong lawyering skills andmaintaining the best legal talent. While most firms have extensive training curricula, somehave gone a step further to also create institutionalized programs directed at the profes-sional development of each individual associate. The purpose of the individualizedapproach is to help associates grow professionally and to encourage them to take controlof their own career path.

I spoke recently with Kristen McManus Powers, Career Development Manager at Arnold& Porter LLP in Washington, D.C., whose innovative role exemplifies the individualizedapproach to PD. Kristen offers the associates at Arnold & Porter career coaching andcounseling—even if that means helping an associate secure a job with another employer.

A. Arnold & Porter instituted the career counselorposition as an expansion of its extensive professionaldevelopment initiative. My position was created tocompliment the Professional Development depart-

ment’s training, integration, and mentoring programs by focusing on the individualattorney and his or her personal career development needs. Arnold & Porter’s Director ofProfessional Development, Caren Stacy, recognized the need to designate one person at thefirm to work with the associates to help them develop and track their career goals. Carenand the firm’s management team realized that every attorney is unique and, therefore,every career path is going to be different. The purpose of my position is to provide confi-dential career coaching to associates based on their own needs and goals.

AT A GLANCE: The career developmentmanager at Washington, D.C., firm Arnold& Porter answers questions about herfirm’s individualized program to help associates reach career goals—at the firm or even by leaving the firm for other employment.

By Cindy Diamond Roberti, Assistant Director Research andServices, Hogan & Hartson L.L.P., Washington, DC

Innovation in Professional

Development:

“Whatever the associates’

long-term goals may be,

my focus is to make sure

they are thinking

strategically about their

career moves.”

A Profile of Kristen McManus Powers,Career Development Manager atArnold & Porter LLP

Q. What was the impetus behindthe creation of your position asCareer Development Managerat Arnold & Porter?

A. In my role, I provideconfidential, one-on-onecounsel to approximately300 associates firm wide.

The assistance I provide is very individualized and the scope of mywork covers anything affecting an associate’s career. Often, anindividual career coaching appointment with an associate followsa scenario, which I call troubleshooting. For example, an associatemight come to see me for guidance because they are experiencingdifficulties with a colleague. Or, an associate might not be happywith the kind of work they are doing and would like my help tofigure out how to explore other kinds of work in the firm and nav-igate firm resources to gain exposure to another area of interest.

However, the bulk of what I offer associates is career planning, byhelping them set and reach both short-term and long-term careergoals. We encourage all of our associates to create an annual careerdevelopment plan and I assist the associates with this endeavor. Anassociate may meet with me to brainstorm 3 to 5 goals for the yearand then together we develop an action plan to reach those goals.We have also added a professional development component to theannual associate evaluation process to encourage partner partici-pation in guiding associate career development. Followingevaluations and a PD debriefing, associates may set up an individ-ual coaching session with me to discuss and to act upon thefeedback received.

Many times, my job entails helping an associate navigate the A&Psystem by making them aware of firm resources, programs, or con-tacts. While Arnold & Porter is a very big firm, I try to be asknowledgeable and informed about firm resources as possible. Asa member of the PD department, I am kept aware of training pro-grams and other department goals. This connection has provenbeneficial for my role because I can knowingly recommendupcoming PD events to associates seeking to develop their skills.Likewise, if I see a need for training not currently offered, I am ina position to bring it directly to the attention of those who createthe training curriculum.

A. In addition to the exam-ples I mentioned earlier,troubleshooting and assist-ing with career planning, I

have created a number of handouts focusing on different aspectsof career development, including self-assessment. Attorneys maycome to see me because they are not satisfied in their careers butare uncertain of what is causing their discontent. Most of the time,attorneys haven’t taken stock of where they are in their careers and

how they would like them to progress. I have devised my own self-assessment inventories that I use to measure an associate’s workand life values, interests and skills so as to determine what type ofpractice or work environment might suit them best. Through self-assessment, an associate might realize that Arnold & Porter is thebest fit for them, or they may feel that a different employer wouldbe a better match.

A rather unique and innovative part of my role, as CareerDevelopment Manager, is the support I provide to associates whoare pursuing external employment options. I encourage all associatesto be aware of their external options, because I believe that associ-ates fully commit to the firm when they make an informed choice tostay there. The firm recognizes that not all associates will find pro-fessional satisfaction here but sees the long-term value of keepingattorneys happy, even if they decide to leave the firm. Because anassociate who leaves happy becomes a happy alumnus or, potential-ly, a happy client. Since all of my encounters with associates are100% confidential, associates are assured the trust necessary tobuild our counseling relationship and are confident there won’t beany consequences associated with using my services to seek alterna-tive employment. I might assist an associate who realizes partnershipis not for them, an associate who believes they would rather work ata government agency or for a client, or an associate who is thinkingabout leaving the practice of law altogether. Whatever the associates’long-term goals may be, my focus is to make sure they are thinkingstrategically about their career moves.

A. This year, I hope to offera series of career develop-ment programs focusing onissues affecting associate

career growth. The programs might include panel speakers on top-ics such as work-life balance or how to deal with stress. I envisionthe panels would be taught by outside consultants and/or internalpartners. For example, we could have part-time lawyers talk abouthow they achieve work-life balance or manage their time. It mightalso be interesting to have clients come in to talk about their posi-tions as in-house counsel.

Our PD Department has a few technology initiatives planned aswell. We are working on an internal professional developmentportal where associates will be able to access departmentresources, such as training materials, mentoring guidelines, andself-assessment handouts, as well as materials for creating a careerplan. We hope that this will enable us to offer a complete packageof services to associates that will address each associate’s develop-ment needs.

7

Q. What is your role and whatkinds of assistance do youprovide to attorneys at Arnold & Porter?

Q. Can you provide some specific examples of the kinds of guidance you haveprovided?

Q. What future developments are you working on in your role?

8

Some Copyright HistoryCopyright in the United States was first addressed in Article I, Section 8, Clause 8 of theU.S. Constitution (1787): “the Congress shall have power . . . to promote the progress ofscience and useful arts, by securing for limited times, to authors and inventors the exclusiverights to their respective writings and discoveries.” In the 1790 Copyright Act, the FirstCongress implemented “An Act for the Encouragement of Learning, by Securing Copies ofMaps, Charts and Books to the Authors and Proprietors of Such Copies.” The law wasmeant to provide an incentive to authors, artists, and scientists to create original works byproviding creators with a monopoly. At the same time, however, the monopoly was limit-ed to 14 years in order to stimulate creativity and the advancement of “science and theuseful arts,” via “public domain.” Expired works, therefore, were free to be copied andenhanced, creating new works and furthering knowledge in the arts and sciences.

Major revisions to the act were implanted in 1831, 1870, 1909, and 1976. It was in the1976 Copyright Act that Congress suggested in Senate Report 94-473 that the CopyrightClearance Center be created as a clearinghouse between rights holders, i.e., authors andpublishers, and consumers.

Copyright Clearance Center (CCC)Headquartered in Danvers, Massachusetts, and registered in New York as a Domestic Not-For-Profit Corporation, the CCC employs 179 people and has estimated sales of$12,000,000.

AT A GLANCE: Dorsey’s budget for copying and distributing articles in 2006 isone fifth of what it was in 2003. How didthey do it?

By Linda Will, Director of Information Resources,Dorsey & Whitney LLLP, Minneapolis, MN

“[L]awyers tend to focus

on their own work and

client responsibilities

without giving the

intricacies of copyright

law much thought.”

Law Firms, Copyright,

Copyright Clearand the

In the beginning, the CCC was primarilyconcerned with scientific, technical, andmedical resources that were at risk of hav-ing their copyrights infringed upon. It wasnot until the 1990s that the CCC beganfocusing on the legal field, soliciting legalpublishers and law firms for its services.Many law firm librarians would say thatthe CCC’s marketing efforts exceeded nor-mal standards of commercial behavior,becoming harassing and intimidating,rather than educating, for the not so copy-right-focused legal industry.

In the beginning, many law firms sub-scribed to the CCC’s TransactionalAgreement, which consisted of installingpaper logs at copy machines so users couldreport titles and numbers of pages copied.At month end, logs were collected andcompiled, reconciling the amount of anypayment due to the CCC as redistribution

to rights holders. In time, law firms evolvedto the Annual Authorization License, pay-ing the CCC a flat annual amount, basedon the number of professional employees,plus an administration fee. The amount ofactual copying these users performed,which served as the basis for the fee, was avery rough estimate. These high paymentsto the CCC, with little specific basis, werenot popular with law firm business man-agers. But in the wake of the AmericanGeophysical Union v. Texaco Inc. case,fear of the potential financial penalties and,even worse, the reputational impact of run-ning afoul of copyright law became asignificant concern among large law firms.Paying the CCC was considered by manyfirms to be another form of malpracticeinsurance, a necessary cost of doing busi-ness. One firm even tried to circumvent theCCC by adding copyright infringement to

its liability insurance coverage. However,the firm could not find an underwriter todo so.

It did not help matters for law firms thatthe CCC Annual Authorization coveredonly print copying in an era when electron-ic access to research resources was quicklysupplanting print. The CCC introduced anElectronic Amendment to existing AASLicense Agreements, but charged an addi-tional fee plus a 25% administrationcharge. The agreement only covered inter-nal use of print and electronic resources.

Suddenly, and seemingly out of nowhere,another option came about: Valeo IP.

An Alternative to CCCValeo IP entered into copyright license withseveral information providers, includingUPI and API. Although the organizationonly offered a few legal titles initially, Valeo

provided the service of obtain-ing rights at a third the cost ofthe CCC. Valeo also providedweekly logs of rights requestedand tracked how much waspaid to each publisher.

Publishers received a list of articles request-ed by law firms and the firms retained a log of what they had requested. Instead of fueling an adversarial relationshipbetween producers and consumers of infor-mation, Valeo fostered partnership.Unfortunately for its sharehold-ers and customers,Valeo may havebeen an

idea ahead of its time. It closed its door inSeptember of 2005. Valeo’s brief time in thesun did prove that there could be alterna-tives to the CCC. Law firms just had to becreative and look harder for solutions.

One Firm’s StrategyAt Dorsey & Whitney LLP, we see manag-ing the firm’s copyright position as sensiblerisk management rather than as an obscurelibrary obsession or an unnecessary cost.

Dorsey’s copyright strategy consists ofthree parts: negotiation, education, andmanagement.

Although many of our online license agree-ments had already been negotiated, wewere able to tweak standard verbiage frommajor suppliers. We want to be very clearabout what information we need and whatthe vendors permit us to do. For example,could we redistribute digital works via ourfirm intranet? Who would have access tocontent—all firm personnel or just attor-neys? Would we be able to download andupload posted material? How long wouldposted material remain available? Mostvendors have been happy to spell out ourrights as consumers and have provided theverbiage that we post on our copyrightintranet page.

continued on page 12

9

ance Center

NASA has forgotten how to get to the moon!That is one striking example of a problem thatthreatens many businesses, says David DeLong.More generally, many organizations are likely to lose knowledge critical to their survivalthrough retirements of their long-term babyboomer employees. The baby boom generation,which is approaching retirement age, is muchlarger than the following generation that

will replace them.Knowledge in technicallyadvanced companies ismore complex, interdisci-plinary, and contextual,and thus more difficult totransfer to successors. Theyounger generations nowjoining the workforcehave different values thatmay add to the difficultyof transferring knowl-edge. These factors havemade stopping knowledgeloss a matter of survival,and leaders who ignore itwill be held accountable.

DeLong’s definition of lost knowledge may besummarized as loss of acapacity for action that anorganization had previ-ously demonstrated repeat-edly (p. 22). Knowledgecan be lost at the individ-

ual, group, or organization level, and he citesexamples where the loss of a single individual’sknowledge has proven costly to a firm. Whilethe effects of lost knowledge are sometimes anasty and expensive surprise, organizations canoften, if not always, anticipate losses in time totake action.

Lost knowledge can be a strategic threat whenthe loss of expertise makes the organization lessable to innovate, to support expanded oper-ations, mentor and assimilate new employees, oravoid errors in day-to-day operations. Anorganization can lose knowledge that formerlygave it a competitive advantage or knowledgethat its competitors were able to retain.

An organization seeking to retain knowledgefaces several barriers. The costs of lost knowl-edge are usually hidden, and leaders focused onother goals do not always recognize them.Managers ignore the problem because they havebeen conditioned to focus on cost-cutting andother short-term goals. Even when the problemis recognized, there is neither time nor resourcesto deal with it. Finally, capturing knowledge isnot enough; employees must be willing and ableto use it effectively.

Building what DeLong calls a framework forknowledge retention requires developing ahuman resources infrastructure that includes:systems for evaluating employees’ skills andknowledge; succession and career developmentplanning that includes staff with technicalknowledge; and building a retention cuture

Book Review:

Lost Knowledge: Confronting the Threat of an Aging WorkforceBy David W. DeLong, Oxford University Press, 2004

Reviewed by John E. Duvall, Administrative Analyst, Hogan & Hartson L.L.P., Washington, DC

10

11

that encourages skilled employees tostay. Often, this last item means over-coming the effects of previous rounds ofdownsizing.

An equally important part of the frame-work is a set of practices for retainingknowledge as veteran employees leaveand transferring it to their successors.Explicit knowledge, which is knowledgethat has been, or can be, articulated, iseasier to capture through documenta-tion, interviewing and debriefing, ortraining. Documentation of explicitknowledge should be an ongoingprocess, but too often it is a last-minuteeffort. Interviewing and debriefing areproblematic practices that should only beused when time is short and there are noalternatives.

Implicit and tacit knowledge is bothmore difficult to transfer, because it isuncodifiable, and more costly to lose.The most critical knowledge is oftencomplex, abstract, and context depend-ent, and therefore tacit. Managementcannot actually control the transfer oftacit knowledge; the most it can do iscreate an encouraging environment.Storytelling is effective for teaching howthings get done and for transmitting val-ues, if management is clear about itspurpose. Mentoring and coaching effec-tively transfer knowledge from oneindividual to another. After actionreviews are useful for capturing knowl-edge that is dispersed within a group,rather than held by any one individual.Communities of practice are naturallyoccurring groups within organizationswhose members are committed to con-tributing their time and that promotelearning through social interaction.Information technology plays a second-ary role and is not itself the solution toretaining and transferring knowledge. Itsrole is to support and enhance theknowledge retention effort.

After the knowledge is gone, there arestill options. Retirees are often willingand able to serve as consultants or con-tractors. Intellectual activities cansometimes be outsourced if qualifiedsuppliers are available.

Sometimes, critical knowledge can disap-pear overnight, as through sudden illnessor death. Regenerating the lost knowl-edge may then be the only alternative.Although often costly and time-consum-ing, this can be done by finding out whatknowledge the successors actually have,using artifacts and documents to sparkideas, hiring an outside expert, and re-creating the knowledge by working onspecific problems.

The sooner an organization gets started,the more time it has to refine its prac-tices. Get started by identifying criticalknowledge and who has it, down to the individual job level if necessary. Linkthe risk of lost knowledge to organiza-tional strategy, and to goals that reallymatter to executives (these may be hid-den). Identify potential losses inquantitative terms.

Other barriers may be cultural. Veteranemployees may be unwilling to shareknowledge, or younger employees lessreceptive to using it. Frequent restructur-ings and reorganizations may haveconditioned employees not to expectlong-term careers. The choice is to eitherenlist senior management support inchanging the culture or, if this is not fea-sible, realistically accept and adapt tocultural constraints.

Finally, remember that the real purposeof the effort is not simply to captureknowledge, but to make it available andusable in ways that really add value tothe organization and contribute to itsstrategic goals.

“The most critical

knowledge is

often complex,

abstract,

and context

dependent.”

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Those of us who have been asked to find and hire conflicts staffhave mused about who is best suited to fill the role of a conflictssearcher/analyst.

Is it the young lawyer, perhaps disillusioned with the daily practiceof law after just a few years? Or is it the MBA, perhaps with anencyclopedic knowledge of the business world, including thenames of every major corporation and all of their subs (just kid-ding)? Or is it the techie, who understands the underlying logic ofthe conflicts database and why a search on corporation X failed toturn up an appropriate hit? Or is it some combination of the three?

As the process of sifting through and sorting out conflicts hasevolved, firms have recognized that the conflicts process lends itselfto the skills and talents possessed by many librarians. Librariansare well suited by training, skills, and mind-set to compile, organ-ize, and analyze large amounts of information. Librarians are alsowell suited to the task of finding the needle in the haystack, whichis what many conflicts searches ultimately discover.

Coincidentally, the conflicts database has evolved much like thelibrary card catalog, which evolved from a collection of individualcards with the names of titles, authors, and subjects in file drawersto an automated database of bibliographic information. The con-flicts database has evolved from a list of client names on individualindex cards, often annotated with relevant details of individualmatters, to a large automated database capable of being searchedquickly to produce a detailed report of potential conflicts.

Librarians have also demonstrated an ability to identify and locateuseful information by utilizing a number of information tools, includ-ing traditional print resources and online commercial databases.

Conflicts checking as we know it today has come to rely upon a vari-ety of commercial online databases, e.g., D&B Family Tree Finder,the Directory of Corporate Affiliations (CAPS), Hoover’s, andLexisNexis, as well as information readily available via the Internet,e.g., EDGAR Filings, Secretary of State listings, even Google.

Librarians by training, education, experience, and interest haveoften mastered the skills found critical to producing reliable resultsfor an aspect of law firm management that understandably has avery low tolerance of mistakes.

There are many librarians who are as well suited as any other can-didate for a position on the conflicts staff, including managerialresponsibilities. The librarians often bring a mixed bag of talentsand skills, and librarians who have survived a few years in the typ-ical law library usually possess one other key trait that makes theman obvious choice—poise under fire!

Like so many areas of a law firm, anyone handling conflicts checkswill work under a fair amount of stress. The margin of error isexceedingly thin, the visibility can be high, and the consequencesof any error in the process can be catastrophic.

When measured in full, working in the conflicts operation of a lawfirm can be as challenging and stimulating as any other career patha law librarian might choose.

Conflicts: Challenging Career Opportunities for Law Librarians continued from page 5

In addition to educating the mailroom andcopy center staff about what can be copiedand what needs specific permission, wehave also reminded our professional popu-lation. Although lawyers should knowwhat is protected by copyright and what isnot, lawyers tend to focus on their ownwork and client responsibilities withoutgiving the intricacies of copyright law muchthought. They are no different from otherbusy professionals in this regard. The mar-keting staff has been sensitized to copyrightcompliance, particularly because of theirdesire to disseminate positive firm news toclients quickly.

By designating one key librarian as thecopyright compliance go-to resource, wehave been able to improve our diligenceand ensure compliance. By posting copy-right permission from our enterpriselicensees and linking the copyright page tothe firm’s professional manual, we went theextra mile to ensure compliance. Of course,a memo from the managing partner direct-ing all personnel to the library on copyrightissues was also helpful.

We now have one librarian who overseescopyright compliance and interlibrary loan for the firm. A specific attorney has beendesignated to handle questions about fair use.

We also keep a log of copy requests, titlesfor which we have purchased rights, and the costs associated with copyrightcompliance.

We have a pay-as-you-go relationship withthe CCC. Our budget for copying and distributing articles in 2006 is one fifth ofwhat it was in 2003.

SummationBy thinking strategically and creatively,copyright issues in law firms can be dealtwith both efficiently and economically.

Law Firms, Copyright, and the Copyright Clearance Center continued from page 9

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