Deep smarts: the next generation

  • Subtitle: Legal Innovation Now: Knowledge Management is entering a new phase to boldly go beyond mapping what lawyers know to exploring how lawyers know
Written by  Posted Date: January 30, 2017

Deep smarts: the next generationAt a recent legal technology innovation event, one of the startups introduced its new technology as targeting the Final Frontier of Knowledge Management: turning the tacit into the explicit. The Star Trek reference had me imagining my team and I in shiny Federation uniforms stepping boldly into the new and as yet unexplored world of KM beyond our borders.


The reality is a little more mundane, however, and in fact should be more accurately described as an iceberg than any strange new worlds. Explicit knowledge is usually described as the part of the iceberg that you can see sitting above the water. It is the “Know What” of our firms — the documented checklists, best practices and precedents that have been codified (turned into paper or bits and bytes). It is what traditional KM initiatives focus on: how to turn the knowledge in the heads of our partners and associates into a collection of manageable assets that can be passed around the firm and collectively learned from.

Those of us in KM are looking for content that is re-usable, and for processes that are repeatable, to then standardize them for the benefit of the whole firm. We are looking for ways to avoid the pain of re-inventing the proverbial wheel over and over again, and to reduce the wasted time in repeating history rather than building on and improving that which has gone before.

The knowledge collections at our firms, however, regardless of size, are in fact only the tip of the iceberg.
It is the untapped tacit knowledge of the iceberg sitting below the surface of the water that represents the true distinctive value of our firms. Tacit knowledge is the personal experiences and deliberate practice by individuals built up over their 10,000 hours on the knowledge ladder of expertise. This experience-based wisdom is also known as the “Deep Smarts” of our firms. It’s the stuff that’s hard to explain to others, and often we respond with a “Let me show you instead.” It’s the “know-how” of being a brilliant lawyer. “We can know more than we can tell” as Michael Polanyi described it. Excellent salespeople or comedians would both say that it is inherently difficult to “teach” sales or “teach” someone a sense of humour. We often refer to them as “naturals” instead.

Dorothy Leonard and Walter Swap, who authored a book on the subject (Deep Smarts: How to Cultivate and Transfer Enduring Business Wisdom, HBR Press, 2005) describe these people, whose intuition, judgment and knowledge are stored in their heads, as the core differentiator between the firms we inhabit. Their knowledge is essential.

KM professionals have been working on methods to extract this tacit knowledge for decades. (Slightly more unsettling methods of extraction are a recurring theme in sci-fi, such as the “mind uploading” from RoboCop to Skynet or the disturbing “White Christmas” episode of Black Mirror where minds are copied on to “cookies” for full brain emulation.) You’ll be glad to know that the KM folks are less drastic in their hope to turn the tacit into the explicit. And as we understand more about how knowledge is best transferred between people and how people optimally learn from others, organizational strategies for developing deep smarts are getting better, too.

Passive learning in the form of lectures or self-directed learning through books or annotated models are just the tip of the iceberg for creating smarter, faster, better lawyers. The Deep Smarts book recommends four active learning approaches that need to be in place for transferring deep smarts: practice, observation, problem-solving and experimentation. The idea is to create so-called “learning receptors” by providing frameworks and tools (or mental models) on to which experience and context may then be tied.

Guided practice
Made famous by Malcolm Gladwell’s Outliers book, this is Anders Ericsson’s thesis that “deliberate practice” over the course of 10,000 hours is what creates experts. But, as both the book and the thesis make clear: That is not the same as mindless repetition of a task. Deliberate or guided practice requires reflection and commitment to improvement as well as with an expert who can provide performance feedback throughout the learning process. To properly practise drafting, it is not enough to just write.
There must be some element of being guided by a coach in what good and bad drafting looks like and how to spot excellent constructions of legal language.

But we hit a paradox here: On the one hand, recreating the wheel and drafting from scratch is inefficient; on the other, lawyers learn better by doing. Applying precedent language to a transaction is great when in the middle of a deal, but deep smarts is going to happen when specific topics or provisions can be explored and practised over and over again to model-precedent perfection.

Guided observation
This is one of the preferred techniques of design thinkers — that to understand what someone actually does you must observe. There is a notorious gap between what people say they do and what they actually do.

The best form of learning by observation is shadowing a lawyer or the apprenticeship scheme, like that of pupillages in barristers’ sets in England and Wales. The pupil shadows their supervisor for the first six months watching trials, conferences and assisting with paperwork. Sitting in the same office means the opportunity for the osmosis of key insights and intuition to pass from expert to novice. The value of listening to an expert deal with a difficult colleague or client on the phone and then discussing the approach (either beforehand or following the call) is incalculable for deep learning.

Guided problem-solving
Most of us know this technique from our years of studying — the best study hack to pass exams is to answer as many exam-type questions as possible (even those you may have crafted yourself) under exam-like conditions and then research and mark your answers. Being set realistic client problems to research, explore, draft and practise; gathering samples, understanding different uses and applications of the law in different contexts and discussing these with experts enable the deepest transfer of the tacit smarts to trainees.

Guided experimentation
Finally, developing simulations allow lawyers to practise what they have learned and to test theories and experiment with different approaches. Moot or mock trials are enduring examples of such simulations in law. They are a fabulous way of transferring tacit knowledge in our firms — encouraging that all-important active learning to cultivate the deep smarts.

Our KM strategies quite rightly explore converting tacit into explicit knowledge by embedding context and deep know-how (via annotations, etc.) into the precedents and best practices we produce. And we focus on making sure that codified and explicit knowledge is centralized so that it can more easily be found by those who need it when they need it. But we also need to recognize that to successfully transfer the deep smarts to the next generation, we must boldly go and seek out these more active learning methods at our firms.

Kate Simpson is national director of knowledge management at Bennett Jones LLP, and she is responsible for developing the firm’s KM strategy and initiatives. The opinions expressed in this article are her own.


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Kate Simpson

Kate Simpson is national director of knowledge management at Bennett Jones LLP, and is responsible for developing the firm's KM strategy and initiatives. Opinions expressed are her own. She can be reached at kate@tangledom.com.

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