(Disclaimer: I know Paul, and we’ve worked together on a couple of things.)
He speculates on the probabilities of various ways this mess might have gone down. The probabilities are not real data, of course, but Paul evidences an understanding of how things work in high-tech that so many commentators have missed.
VW might not be “high-tech” in the sense of Microsoft or Google, but software engineering is a major part of modern vehicles, and it’s likely VW’s software engineering is closer to high-tech that to, say, aircraft design.1
What he gets absolutely right is the high probability that this mess involved only a handful of engineers. If it involved Legal at all, it’s likely the attorney in the loop – in house or outside – lacked a full understanding of what was being discussed. The attorney may have suppressed qualms because of a lack of understanding. I’d add the possibilities that a junior attorney a) didn’t feel qualified to object and felt dumb about not understanding or b) offered guidance but didn’t follow up to see whether it was followed.
We obviously don’t know what happened. I don’t think that’s the point of Paul’s article, and it certainly isn’t the point of mine. Instead, I want to point out the lack of communication and trust between engineering and legal in many organizations, especially in the high-tech world. Each speaks a specialized jargon, and often each is convinced that their worldview is the only one that matters. Obviously this isn’t true for all engineers or attorneys or organizational cultures, but I’ve seen it played out enough to know that it is not at all uncommon.
“This Meddlesome Priest”
Finally, let me add one more scenario I haven’t heard anyone discuss here.
You might recognize the quotation in the heading above. It’s the traditional musing attributed to King Henry II about Thomas Becket, perhaps best known from the wonderful film Becket.2 Is he asking someone to do the deed, or is he simply whining? Either way, four of his knights took it as an order.
It’s not impossible that a senior manager at VW asked, “Can’t someone figure out how we can pass these emissions tests?” Perhaps an engineer took it as an instruction to cheat. Or perhaps someone took it literally, and figured out how to make the cars pass emissions tests.
Using Paul’s scales, I’d give this a 5% or even 10% likelihood, based on my background in engineering, management, and legal departments.
Shouldn’t Someone Have Known?
One opinion I’ve heard, when I’ve talked with colleagues about these possibilities, is that management should have known something was amiss.
Maybe. In fact, probably, but not at all certainly.
Other cars were passing the tests. VW believed in its engineers and expected them to solve previously unconquerable problems. Somehow, they solved this one, too – one which likely got little attention in the thousand things it takes to get a car to market. “Hey, Joe, are we passing those US emissions tests?” “Yeah, looks like it.” “Cool.”
How Do Companies Prevent These Things From Happening?
Ah. There’s the problem, and it’s a hard one.3 There are cultural issues, and communications issues, and too-many-managers-focused-on-their-own-limited-objectives issues. These are very hard problems.
A good, open, thorough, and non-predisposed investigation into how this happened at VW would be a good start – not to apportion blame, but to help understand the genesis and development of the chosen solution to the emissions issue – and how no one caught it.
Meanwhile, kudos to Paul for being a rare writer who has an understanding of how both the legal worlds and engineering worlds work – and how they work (and don’t work) together.
I read an interesting quote this morning from investment guru Dave Blood:
There were companies that had the same toxic short-term culture in those days—Drexel, Salomon, Bear Stearns, Kidder, Lehman…. They’re all gone. If you look at what happened to them, it was all failures of culture: governance, leadership, incentive structures, values. That’s why they failed…. Long-term business success requires a holistic view, involving teamwork, integrity, values.
He goes on to describe why these factors are connected in a causal relationship.
How does this apply to law firms going forward?
Leadership and teamwork4 – two key principles of Legal Project Management. Two areas where Legal Project Management training can help to change the way lawyers not just work with clients but build a firm’s future.
Legal Project Management is more than a series of tips and techniques. It’s a mindset. And it matters for the future.
How are you ensuring your practice’s future via your next generation of lawyers?
Buses in Seattle used to say “Out of Service” when they were being repositioned – moved, say, to the start of the route they will serve next. Now they say “To Terminal.”
What gives? And who cares?
Imagine: It’s rush hour. You’re waiting for a bus. And you see three buses in a row marked “Out of Service.” How does that make you feel about the efficiency and effectiveness of the transit system? Do we keep buying buses that break down? Or is the scheduling so bad that they’re taking buses off the road at the very moment I’m waiting for one the city needs them most?
The new wording makes the situation clearer.5 They’re not out of service, broken, or dumb-scheduled. Rather, they’re going to where they’re needed, and soon, maybe, one of them will pick me up. (Seattle’s King County Metro also uses a cool app called OneBusAway that tells users exactly where their bus is right now, which my son relies on for getting to school by leaving the house at the last possible minute.)
Are You “Out of Service” When You Communicate?
When you communicate with the client, or with your team, what messages are you delivering? “Out of Service” – or simply “Out” on the small sign on the back of the bus – is not inaccurate, but the message received isn’t necessarily the message intended.
And in communication, reception and perception are reality. The receiver doesn’t care what you meant.
Lawyers live and die, in effect, via communication. Yet so often they do not communicate effectively.
“Effectively” is the key word.
Consider the average contract, where lawyers spend days trying to get the wording absolutely clear.6 That’s fine – probably – for most contracts, but that’s not communication, at least not in a form useful for communicating directly with the client or the team. “Unambiguous” and “effective” are not the same thing.
I’m not suggesting that ambiguity is necessarily a good thing, but rather that communicating the key message clearly trumps the need for no-contingency-uncovered legalspeak. Two sentences that seem similar to you might not be at all the same to the client.
Think not just about the message you want to deliver, but how it will be received. And focus on the reception of it, not the delivery.
After all, you don’t want your client to think you should be “Out of Service.”
Liza: He treats a flower girl as if she was a duchess. Higgins: And I treat a duchess as if she was a flower girl. – George Bernard Shaw, Pygmalion (it’s in My Fair Lady, too)
Even if you’re not a fan of these kinds of movies (see below), I recommend you see this one with a project manager’s eye.
Here’s a spoiler-free list of lessons you might want to note.
Keep pushing forward in the face of failure. Stuff happens. You can either give up, or look for workarounds. Obviously, for astronaut Mark Watney, giving up means dying. But we generally don’t want to give up on our projects, either, even if it’s not life-or-death.
Look at goals, not methods. When things go wrong, Watney remains focused on the ultimate goal. (Or goals, since the key goal – the means of survival – changes partway through the movie.)
Assume others are doing their job. You cannot be a one-person show. You see this not only in Watney, who assumes people on Earth might be wondering what happened, but in the folks doing things at NASA.
It takes a variety of people, with different skill sets, to pull off complex projects. (This goes for the movie itself too, with terrific, understated performances in smaller roles by Jeff Daniels and Jessica Chastain.)
“Do the math.” This phrase comes up a number of times, along with “I’m going to science the *@&^ out of it.” Use facts where you have them, educated guesses where you don’t. But learn as much as you can – and then act, knowing full well that there remains much you don’t know and cannot determine.
Just because it smells bad doesn’t mean it isn’t useful. (Anything more would be a spoiler here. Sorry.)
Keep your sense of humor in the midst of a failing project. It will keep you sane, and it may keep you alive.
Here’s a picture from one of yesterday’s football games showing an obvious defensive holding call. By rule, a defensive player cannot grab a receiver’s uniform, whether it affects the play or not.
It didn’t get called. Seven officials watching the play, and no foul was called.
A lot of Green Bay fans were undoubtedly frustrated by this, though in the end Green Bay (white jerseys) won the game handily.
But former NFL VP of Officiating Mike Pereira makes a terrific point in analyzing what happened. I can’t embed it, but here’s the link.
He analyzes what each official is supposed to be watching, determines which one is tracking this receiver, and then notes how the official’s view is blocked because he’s standing directly behind the San Francisco player (red jersey).
Let’s take this to the Legal Project Management arena to draw some lessons.
First, failures and mistakes happen. It’s your job, as project manager, to position yourself to best catch errors – ideally before they happen, but at least catch them. Except sometimes, even when you’ve set things up well, your view is blocked – not by a 200-pound defensive back, but by circumstances, or other events, or too many crises happening at the same time.
The project debrief (a/k/a after-action review) is a great time to look back on these times and determine whether there was more you could reasonably have done. Often for good project managers, the answer is “no.” You put yourself in the “right position,” but that’s not the infallible position, only the right place to be most of the time. You understand the people on the project. You have good communication with the client, understand the hidden stakeholders and their motives, develop a realistic schedule with fallback positions, and so on. And yet still stuff goes wrong. It will happen even on the best-run projects.
But it will happen a lot more, with far more devastating outcomes, on poorly run projects.
Your goal isn’t “perfect,” but “better.” You’ll never get to perfect. Even programs with incredible redundancy and backups and triple-checks have failure points. Legal projects cannot move slowly enough to allow for, say, airframe-design levels of checking.
Second, don’t beat yourself up over what random observers tell you. I’m sure the official here heard it from the Green Bay coaches, and maybe from the receiver as well. They have the right to complain, but that doesn’t mean their complaints are “right” (in that you should have done something different). Listen, learn, but in the end, you need to work toward what makes sense most of the time. You cannot manage projects by anecdote – “it didn’t work this one time, so I’ll abandon a useful method/approach.”
Third, consider this play from the defensive back’s standpoint. The receiver has him beaten. He’s wide open. It’s probably a touchdown if the defender doesn’t grab the jersey (or undershirt, in this case), since you can see the end zone 11 yards away. The back recognizes that bad things are likely to happen8 if he doesn’t impede the receiver, break the flow. And it’s only a five-yard penalty plus automatic first down for the grab, versus an almost sure touchdown if he doesn’t commit the penalty. (It’s also quite probable that experienced players know exactly which official is supposed to be watching and what he can and cannot see.)
In other words, given two poor choices, the defensive player makes the better choice. That’s also something good project managers do. They look for the best choice, not the perfect choice – and they make decisions when they need to, whether or not they have only partial information.
Patrick Smith’s column, Ask the Pilot, is an invaluable guide to what goes on in the front of those titanium tubes in which we spend many hours.
Today’s column describes checklists. I’ve written a long series of articles about checklists in the past, and they are discussed in my books. I also cover them in detail in my longer seminars.
I urge legal project managers to look into checklists for common series of tasks. In fact, many of the worksheets I offer also function as checklists. Fill them out, and you’ve covered the critical information. Covering it doesn’t guarantee you “get it right,” since projects, especially legal projects, are full of unknowns and ambiguities, but it does guarantee that you’ve at least considered the issue – which greatly increases the odds over not-thinking-about-it that you’ll either make a good decision now or have early warning and time to improve the decision should events play out in an unexpected manner.
So get on the checklist bandwagon. They’re not complicated. Indeed, they lose their effectiveness if you overcomplicate them. A handful of simple checklists can make a big difference, such as:
Did we cover all the elements on the project charter?
Do we understand the client’s Conditions of Satisfaction?
Did we wind down the project effectively?
Will this meeting be productive, and is it really necessary? (See? They’re not all big things.)
After all, I’m doing something similar – translating the arcana of the the art and science of project management into the legal arena.
I hope (and evidence suggests) I’m doing a better job than “All murder is awful, but this one was even more awful,” someone’s translation of “Murder… most foul, strange, and unnatural.”
Great project management seems effortless to those who see it in practice, just as great Shakespearean acting should seem effortless and natural. But it takes a lot of rehearsal, practice, and trial-and-error to get to that point.
And, yes, translation.
In staging a Shakespeare play, the director9 will work to help the actors understand the meaning(s) of each line, each phrase, each moment. In a way, that’s my job regarding project management. Do you care about Pareto optimization, say, or minimax theory or crashing the schedule? Probably not, but the concepts behind them are important. I try as a teacher, seminar leader, and author to embed them into simple-to-grasp concepts you can apply easily to the legal projects you’re working on. I usually avoid the terminology and rarely note that there is terminology that describes what I’m teaching.10
Think of me as the guy who translates project management into plain-and-simple English for lawyers.
Hmm. How ’bout, “All bad project management is awful, but this project was even more awful”? Let’s work together, and you won’t have to say that anymore!
Wait. Into English? They are already in English, n’est–ce pas?
Si. Oui. Sort of, I guess, at least according to many readers and theatergoers.
My first reaction, on seeing this article, was revulsion. Shakespeare’s language is beautiful, glorious, and mostly clear. (As you probably know, all of my Legal Project Management books have a semi-relevant Shakespeare quote at the bottom of every right-hand page. And if you don’t know, click the right sidebar to order a few and see for yourself.)
But then… I’ve spent a lot of time with Willie the Shake (See below).
And sometimes, especially if I’m tired, I struggle with some of the passages when I see one of his plays.
But… past attempt to “translate” or update Shakespeare have produced downright ugly results. (“All murder is awful, but this one was even more awful.” Seriously.)
Then… I read further, about a teacher named Conrad Spoke, who has attempted to update only a few selected words – the “10% translation” – while keeping the style and rhythm, such as:
Besides, this Duncan Hath borne authority so meek, hath been So pure in his great office, that his virtues Will plead like angels, trumpet-tongued, against The deep damnation of his knocking-off.
Can you find the three changes? Okay, one is rather sour – “knocking-off” – but two flow perfectly (“authority,” “pure”). As Mr. Loaf said, two out of three ain’t bad.
So maybe…. I don’t know. But maybe.
As Brecht put it, “We can amend Shakespeare if we can amend Shakespeare.” In other words, the proof is in the pudding. (Modern translation: The test of a pudding is eating it.)
Footnote of sorts:
I own a reproduction of the First Folio (the 1955 Yale edition, once rare but now available on Amazon for under $20, which is the biggest bargain out there – go get a copy! No, I’m serious. If nothing else, it’s a coffee-table book to blow away other coffee-table books).
I also have Variorum editions of many of his plays, ca.-1900 editions that resemble the Talmud, with a mix of the raw First Folio text plus line numbers, emendations suggested over the years to clarify that often-mistranscribed text, and commentary on what it all means. The Variorum editions are almost impossible to come by these days, though Powell’s in Portland may have some of them. In fact, I found the Yale Folio reproduction at Powell’s on a hiking trip through the northwest in 1977 or thereabouts.)
The pictures show the same passage from these two books, at least as best as I could capture them on my smartphone without flattening the pages or damaging the binding.
I used to semi-joke about three categories of software issues with my colleagues: 1. Can anyone die? 2. Does it touch our fiscal systems? 3. Everything else. VW’s software issues are category 3.
What? You don’t know it? Go rent it this weekend. Seriously.
No, the answer isn’t Legal Project Management. :-)
And values, indirectly.
Is “To Terminal” the best wording? I don’t know, but “To Terminal” remains a vast improvement.
Except for sections they leave intentionally ambiguous.
Skip the 3D version, which is dim and feels both distant and confining. Get caught up in the big-screen 2D version. I saw the 3D version, then dropped into the auditorium next door in the multiplex to see twenty minutes of the 2D version. Trust me. Go 2D.
As if Green Bay quarterback Aaron Rodgers needs a receiver to be this ridiculously open to get the ball to him!
Often aided by a specialist, called a dramaturg.
Okay, I’ve failed with “minimax.” I often use and explain the term in my sessions because the concept is so critical, and I think the example I use makes it memorable and “sticky.” But I haven’t stopped looking for a better alternative.
How many? There are a bunch that are semi- or mostly Shakespeare, such as The Two Noble Kinsmen. Thirty-nine is as good a number as any.