I’ve played many roles in my life and like all of us, who I am today and how I think about and approach many topics reflects those experiences and life lessons. You’ve already read about the implications of my race driver role in legal service delivery.  And yes, I still am a race driver. But perhaps one of the most significant roles I played was well before I became a lawyer.  I was a lifeguard.

I like to recall this particular role first and foremost because that’s how I met Marie, my lovely wife for 37 years. But upon reflection, there’s another reason why this role was so important and so instrumental.  For the three years I was a lifeguard, I went in the water to help someone only once.  Now, while diving into the water with a rescue float might conjure up imagery of Baywatch or The Guardian, in my case, that certainly wouldn’t have been warranted.  I was a good swimmer but I was a skinny, lanky kid.  More importantly, the heroic rescue, while applauded by those onshore, is actually the last resort.  Lifeguards are trained to NOT go in the water – unless there simply is no other option.  Even more significant is the realization that having to effectuate a rescue, any rescue, often is the result of bad judgment or inappropriate behavior of the swimmer.  As such, while I went in the water only once, I blue my whistle a lot, a whole lot.  A whistle is the lifeguard’s physical manifestation of prevention – it’s the tool used to stop someone from engaging in an inherently unsafe activity that could result in death or physical injury.  So, while the rescue might be exciting and might be heroic, it’s the stoic lifeguard, vigilantly watching those in and around the water with that that pain-in-the-butt bleat of the whistle that protects and serves.

To summarize, as counsel qua lifeguard,  using  once again  our PRT approach:

  • Principle: Lifeguard – We protect and save lives, but we believe that every accident can be prevented. Lawyer – We help you with legal issues and problems, but we believe that every legal problem can be prevented.
  • Rule: Lifeguard – Stop the injury or accident before it occurs. Go in the water only as a last resort.  Lawyer – counseling before an activity can prevent legal problems while achieving objectives.  After a crisis or problem, what we learn can prevent recurrences.
  • Tools: Lifeguard – line of sight, whistle, hook, line & buoy.  Lawyer — P3 discipline (Plan|Perform|Perfect), including the Hot Wash and Formal After Action Tools.

We created ValoremNext, in part, because we believe that prevention should be the next focus areas for law departments and the legal industry.  After all, the best legal problem is the one you never have.  We know it works because this vision and resulting  focus was a primary component in driving  industry leading legal team performance at FMC Technologies for over a decade.

That said, while we believe the concept is sound and scaleable for larger or smaller companies, experience tells us that there is scant data available on whether companies are truly focused on prevention, and if they are, how so.  So, we’ve created a short survey that we are asking people inside companies (not limited to just lawyers) to enlighten us. We know your time is valuable – it should not take more than 3-5 minutes to complete.  We’ll gather data and we’ll publish results in this blog to date

Heres the link: -www.surveymonkey.com/r/ValoremNextPreventiveLaw-HTB95DX

Since more data is useful, we hope you’ll tell others to participate in this survey and hope that you’ll forward this blog and link  to your social media followers/LinkedIn groups or directly to those you know who are in-house at other companies.

Thanks for being part of our grand experiment. Stay tuned for the results.

P3 Stage 3: Perfect

I’m still not a lawyer, I’m still a race car driver. So let’s continue with the build out of our P3 theme (Plan|Perform|Perfect) by examining the last element: Perfect.

OK, the race is over, car and driver have returned safely. The immediate question is did I achieve the objective of the Plan? If that objective was to win, did I come in first or first in my class? If it was to improve my times or my consistency, did I do so? If it was to finally get the right “line” in turn 6, was I successful? If it was to test a new aero or suspension set up for the car, what happened?

Note that all of the above objectives are specific and measurable. We have data – both macro (finishing position, lap times) – and micro (acceleration, braking, speed, gearing, engine rpm, water temperature, oil pressure, etc for every second of the race). We have video shot from the car – – and perhaps from colleagues and competitors. We have tools to overlay the micro data with the video.

But before going to the micro data, we do an immediate review – a Hot Wash (see below) of the race in a discussion with the track support team and perhaps other racers. After that, well sit down and each of us talks though what happened, what we did, whether the Plan worked, changes to the Plan, unanticipated events and our reaction. We come to some initial conclusions about root causes and things that need to be emphasized and things that need to be changed.

After that, we begin the detailed analysis of the data to hone the recommendations into future actions. Do the checklists need to be changed? Does any equipment need to be replaced or modified? Does my driving technique and behavior need to be modified? We do all of this so that the next Plan will be better, safer, and more successful than the one we just executed.

To summarize, during the Perfect Stage I once again used our PRT approach:

  • Principle: We learn from our past – both to continue to use what works well and to change those things that we need to take a look at.
  • Rule: We review our performance during and after every project self-critically and neutrally. We do not assign blame but assume responsibility for our own performance.
  • Tools: We use the Hot Wash and Formal After Action

At ValoremNext, we use this same approach in the perfection stage of every project. And so can you. As with the other parts of P3, the Perfect stage is fully applicable to law departments. Here’s P3, Stage 3, R3.2 in a nutshell:

Review & Reflect – At the conclusion of each phase of a project and at the end of a project, the project team reflects on its execution. This is known as an After Action Assessment or A03. During the project, the tool used generally is a fast-track AO3 called a HotWash (listen to the Manager Tools podcast on this subject for more detail on the technique). The purpose is to quickly identify what went well (“W3”) and things the team needs to take a look at (“TALA”). The inquiry is not about solutions, it’s about identification for the project team leader to use as an input to modify the Plan or any processes used in the Plan. At the conclusion of a project, the review is done using a deeper dive AO3 tool. Here the project leader goes first talking about their own performance. All other team members use this self-critical process to get all possibilities on the table.

Revise – The team can then decide upon actions including process and behavior modification to ensure what went well keeps on going well and what needs to improve is actually improved. As in the case of the Plan phase, any actions must be specific, measurable, achievable, realistic and time-based (“SMART”).

  • First, the environment plays out exactly according to Plan, and the Plan operates as expected;
  • Second, something anticipated by the Plan happens and a known alternative Plan is executed to react to that situation;
  • Third, something unanticipated by the Plan happens and an alternative is developed realtime to react to that situation. Note this may encompass an unanticipated flaw in the Plan as well as an unanticipated change to the operating environment.

Re-Deploy – The modified Plan is performed and the cycle continues until the Project is completed.

The Perfection Stage is almost as important as the Plan because this is where the failures in the planning process come to light. With that introspection and transparency, the next plan will be better than the last one. And this cycle of continuous improvement will continue. This post is shorter than the previous post about the Plan because in reality, execution or performance is the least important part of our P3 approach. A good Plan makes performance easier

On the other hand, you could forget about the perfection stage and just move on to the next emergency. After all, who’s got time for this AO3 stuff anyway? Besides, that self-critical soul searching is difficult – especially for the inhabitants of LawLand. Have you ever noticed that only others seem to make errors? If only everyone just did their jobs . . . . Well guess what, “everyone” includes each and every one of us.

You can implement what I’ve laid out above immediately. Try the Hot Wash process at the end of your team meetings. Try this perfect discipline and let me know how it works for you. Unlike my challenge to you in the previous 2 posts, I know this works even in LawLand and I know you’ll see the promise of and value in the P3 discipline of Plan|Perform|Perfect.

P3 Stage Two: Perform

I started the inaugural entry in this blog with the statement I’m not a lawyer, I’m a race car driver. Just after posting that entry, I had a race weekend and I wrote about the first facet of the P3 theme I introduced to you (Plan|Perform|Perfect).

Moving, quite literally in the case of racing, to the second facet – Perform – It’s race day! The track support team and I have gone through our checklists to ensure the car is prepared. Part of my personal checklist is the ritualistic order of putting on the fireproof racing suit, shoes, and balaclava, removing the steering wheel to get in the car, lowering into the tight cockpit, putting on the arm restraint, helmet, 6 point harness and gloves. I flip the battery and fuel switches, listen for the fuel pump, and press the starter. Ritual helps execution – but it’s no replacement for an actual checklist. So, my team double checks my execution.

I drive through the paddock to the grid to wait for the pace lap. I’m calm because I’ve got a plan. I know who is doing what and when. I leave the grid with the other cars in a tight twocar wide column, warming the tires as we run behind the pace car. As we finish the first lap, the pace car peels into the pit road and the columns stay bunched tightly together, transmissions in first gear, ready to accelerate when the starter throws the green flag. Drivers see the green and it’s off to turn one! Without the Plan, it would be utter chaos – all those cars trying to be in exactly the same place at exactly the same time. But with the Plan, I know the drivers in front, beside and behind me. I know their cars’ capabilities and their normal start behavior pattern. I know what to do to hold my position.

The Plan has turned many of the unknowns into knowns. The Plan also considers various things that could happen. For example, I know where the safest run off places are at each turn – how to mitigate against an incident or a mechanical failure. Taking these predictable possibilities into account in the Plan converts the unknown into known unknowns. While I don’t know if it will occur, I know it could and what I’ll do in that situation. As such, the Plan significantly reduces the unknown unknowns.

When something does happen, I follow the Plan. If outside the Plan, I react to the new environment and then immediately modify the Plan to that new situation. I then follow the revised Plan. This cycle continues throughout the race.

The lessons learned as a race car driver are all applicable to running a law department. Here’s P3, Stage 2, R3 in a nutshell:

Relax – The project team has a plan – follow it. All team members know the objective of the project and who is going to do what when.

Respond – During the execution phase there are three and only three possible scenarios:

  • First, the environment plays out exactly according to Plan, and the Plan operates as expected;
  • Second, something anticipated by the Plan happens and a known alternative Plan is executed to react to that situation;
  • Third, something unanticipated by the Plan happens and an alternative is developed realtime to react to that situation. Note this may encompass an unanticipated flaw in the Plan as well as an unanticipated change to the operating environment.

Re-Deploy – The modified Plan is performed and the cycle continues until the Project is completed.

This post is shorter than the previous post about the Plan because in reality, execution or performance is the least important part of our P3 approach. A good Plan makes performance easier, more predictable and more able to adapt to a change in the environment.

On the other hand, you could fail to Plan, forget the Plan or disregard the Plan. In a race car, while that might be “exciting” it’s also a recipe for disaster. As I said before, try it in LawLand and let me know how that works out for you.

I started the inaugural entry in this blog with the statement I’m not a lawyer, I’m a race car driver.  Just after posting that entry, I had a race weekend.  That backdrop helps illustrate the Plan-Perform-Perfect theme I introduced to you. We call this trilogy P3.

So, let’s start with the first P in P3 – Plan.  Before I left for the race weekend, I used the 3 steps in the Plan portion of P3: Pre-Activity; Objective; and Optimization (known as PO2—what can I say, I’m an acronym kind of guy).  Pre-activity comes from the After Action Assessment discipline and involves reviewing the lessons from similar prior activity to ensure the lessons are implemented.  I reviewed my track notes, video of my last time at this track and video from other drivers.  With this as a basis, I moved to Objective setting and I decided my objectives were, first, faster lap times than my previous run this particular track; and second, more consistent lap times.  The first objective is exciting – heck it’s downright exhilarating because it’s always better to go faster.  But the second objective is more important because that’s what wins races.  Any competent driver can do a hot lap – but a great driver puts many consistent good laps together for a lower aggregate race time.  Just as important, my track support team was making sure the car was tuned and ready: bolts tightened and torqued; fluids checked and re-checked; fire apparatus charged and armed; suspension settings reviewed and adjusted; tire pressures confirmed – checklist complete.

Now I could move to the Optimization phase and create the specific plan for this race.  The team decided roles and responsibilities in the pits and on the track. I identified my shift points, breaking points, turn in points, apex and track out points.  I also created my plan for the most dangerous phase of any race – the start.  It’s dangerous because you find yourself in a close two-by-two formation with similar cars in order of qualifying times.  You’re rolling at relatively low speed waiting for the starter to throw the green flag and then it’s a drag race to the first corner where all those cars are trying to be in precisely the same spot at the same time.  Chaos.

I could just hop in the car and drive.  Maybe the car would hold together, or maybe not.  Maybe I’d hook up my 5-point safety harness properly or maybe I’d forget the arm restraints.  Maybe I’d remember that turn 2 is a tight declining apex turn I have to downshift from 4th to 1st, or maybe I’d remember that after going off into the hay bales.  Maybe I’d run like fire and win, or maybe I’d make an avoidable error and crash.  Exciting drivers just drive and might finish.  Winning racers plan, leverage their teams and finish because nothing was left to chance.

To summarize, I prepared for the race using our PRT approach:

  • Principle: We believe that planning is the most critical factor determining success in any endeavor.
  • Rule: We use P3 for every project and we won’t start a project without completing P3 Stage 1: A Plan.
  • Tools: We use the P3-Stage 1 PO2 discipline to create a plan.

Here’s P3, Stage 1, AO2 briefly:

Pre-Activity:       For some time I’ve embraced the principle that “the only thing I hate more than answering the same question twice, is paying to do so.” Before starting a project, it is critical to canvass what you already know and have learned (but may not remember), and anything readily accessible from your network of resources.   You should never repeat the mistakes of the past, and always leverage what went well before.  Stand on the shoulders of others, and you don’t have to always be a giant.  Don’t have a repository of lessons learned? Well, stay tuned for the third post in this series and others on the A3 topic.

Objective:          Before starting, you need to clearly identify your objective.  We call this starting with “Why” (we highly recommend reading Simon Sinek’s “Start with Why”).  In our world, the best objectives follow a well-known discipline from the HR world: SMART:

  • Specific – “win” isn’t very specific and therefore it’s not too useful. In racing, my objective was improvement and consistency – that could well result in a podium finish but that wasn’t my objective.  In legal matters, if you don’t know what your objective is, if you haven’t agreed with your customer and your entire team, then the chance of success as all have agreed to define it, is happenstance .  But most important, if you can’t define your objective to you’re a service provider ethically bound to provide “zealous representation”, you might as well get your wallet out and just hand it to them.
  • Measurable – As management guru Deming said, if you can’t measure it, you can’t manage it. Things are always measurable – whether or not they are quantifiable.  Improvement, exceeding a benchmark, getting more support, having a contract meeting certain risk and performance criteria, closing a deal with certain defined synergies or results are all examples of a measurable success criteria.
  • Achievable – Your objective must be possible. If a court in the jurisdiction can’t order an injunction in this type of dispute, don’t think about that kind of relief. If monetary damages aren’t enough for your customer, then re-calibrate their expectations.  For example, you can’t eliminate all disputes and litigation, but you can create an environment based on a zero defect mentality.
  • Realistic – Something might be achievable yet not particularly useful or realistic. I might be able to run a lap 5 second faster, but the stress put on the car and driver might make such a pace unsustainable.  And if I don’t finish, I can’t “win.”  It’s not realistic to “win” a case at far more expense than the amount in controversy – unless, of course, it’s a matter of principle.  But in that case, get ready to pay a lot in interest.
  • Time-based – projects must end at some point and therefore, establishing stage gates and end points is crucial. If you don’t, get that wallet out once again.

We can argue, as the podcast Manager Tools does, that achievable and realistic are both redundant and unnecessary, but at least when starting out with this approach, it’s useful to make sure that your clear objective really fulfills these criteria.  An objective that cannot be achieved creates an impossible success criteria.  An objective attainable at an unrealistic cost or one that creates unsustainable conditions for the future, is a waste of time and resources.

Optimization: With objectives clear and previous lessons known, you can now map out your plan.  We use the W3 project management discipline in this stage: who, does what, when.

  • Who – A project team can have one member or many. It’s critically important to identify the roles and responsibilities of each member of the team.  This involves identification of necessary expertise and determining availability.  When you think of any project as a series of linked processes, then you have a chain of supplier, operator and customer, culminating in the end customer who receives the ultimate output of the project and determines whether the agreed upon objective has been met.  Along this horizontal
  • What – The chain mentioned above is the “what”. Which team member will complete some process to produce an output that becomes the input for the next link in the chain.  An example in the e-discovery contest might be to determine which documents have been communicated to or from an attorney.  This doesn’t take an attorney to make that call, but it may take an attorney to determine whether the communication was privileged.
  • When – The order in which the processes are done is the “when.” Since the chain cannot be completed until necessary previous steps provide the output to the next process, the order is important.  In the context above, why have an attorney look at documents that “might” be privileged until that call actually must be made?  Let the operators do their work in the chain before redundant or potentially wasteful activity occurs.  Now, there can be parallel work flow chains, but they must converge since the output of each of those work flows is a necessary input for a later process.

So do the hard work up front and map out your work flows. Identify who will do what when and then you can hold the team members accountable.  Or you can just wing it, start without planning, and see what happens.  Let me know how that works out for you.

 

Up next:  P3 Stage 2: Perform and P3 Stage 3: Perfect