Tomorrow, I'll be speaking at the Louisiana State Bar Association's Solo & Small Firm Conference. I'll be doing an early morning session on Little Big Firm (or how being small can be an advantage if you make smart use of technology). Then in the afternoon I'll do a 90 Tech Tips in 90 minutes presentation with Natalie Kelly, Tom O'Connor, Mike Adams and Craig Bayer.
]]>What if continuing legal education programs took advantage of what we now know about the human brain? Our education system wasn't designed to make learning fun or easy; it was designed to make us obedient factory-workers. CLE programs were developed more recently, but they seem to have copied and pasted from the "obedient factory-worker model."
So, say that we were going to re-imagine CLE programs to make them "brain-friendly." How would we do that? Are there any good books that can help us make the shift? Yes, turns out there is an excellent book: Brain Rules: 12 Principles for Surviving and Thriving at Work, Home, and School, written by John Medina, a molecular biologist with a lifelong interest in how brain science might improve the way we teach our children and the way we work.
I recommend that you read the book from cover to cover, but for now I'm going to focus on three key "rules" that would help folks who put on CLE programs. It could also help the folks who create accreditation rules. For sure, it could help the people who attend CLE programs.
Rule #1: We don't pay attention to boring things.
If you want people's attention you have to earn it, and then you have to keep earning it. Most speakers act as though they're entitled to the audience's attention simply because they're up on a riser behind a wooden podium. Engaging an audience takes some practice, but it helps to know what techniques work best and why.
Emotion - if you can engage an audience's emotions you'll have a much better chance of keeping their attention. Emotions can be triggered by personal things, but some of the universal triggers are: fear, sex, and familiar things. Emotions are more easily conveyed with pictures and interesting stories than with bullet points, but we'll talk about that in a bit.
Meaning - an audience needs a framework for the new information, and they need to know how each piece of information fits into that framework. So, they will pay attention if they're given a roadmap of what's coming, and then continual signals of where you are in that map as you speak. Give them the gist of a topic first to show why it matters, and then you can offer some details. If you give too much detail without clearly explaining why it matters you'll lose the audience fast.
Rule 2: Review information you want to remember
Comedian Father Guido Sarducci used to joke about creating a new type of college called The Five Minute University. The idea was: in five minutes he could teach what the average college graduate still remembers after five years after graduation.
Humor aside, it turns out that Father Sarducci was basically right. Medina cites studies that show that people forget 90% of what they learned in a class within 30 days. The retention time can be extended if the presentation was multi-sensory, with emphasis on visuals (see Rule 3 below).
The best way to ensure retention is with regularly spaced intervals of review. Here the onus is really on the student, but there are things that the presenter can do to help. Here are some embryonic ideas:
There are probably a lot of things that we could experiment with here. The first hurdle is to get over the mindset that a CLE provider is only responsible for creating a single live presentation and then does nothing else to encourage further learning or investigation. Aren't we supposed to be encouraging education? Or is it just about supplying credits?
Rule #3: Use more pictures than words
Bullet points are a staple of most slidedeck presentations. And most presentations contain no visuals whatsoever. Our brains struggle with these kinds of presentations, and get very little out of them.
The average powerpoint slide contains 40 words, says Medina. According to extensive research, this almost guarantees that the information won't be paid attention to, understood, or remembered. Many lectures don't feature slides at all, which is fine if the speaker can create vivid mental imagery with words (most can't). Even so, a speech where there are images that compliment the spoken words is much more effective; it creates a retention factor of 65%, as opposed to 10% for words alone.
The best kind of visuals are animations, which need not be complex. Probably even a Ken Burns effect would suffice in many cases. Point is: use animations (or video) occasionally.
They say that a picture is worth 1,000 words, and that might literally be true when it comes to remembering. One study showed that people can remember 2,500 pictures with 90% accuracy days after exposure. A year later their accuracy is still above 60%. Pictures are a powerful tool for explaining things, and for fixing new information into memory.
I understand the daily challenge of the accreditation folks: getting speakers to give interesting seminars is harder than creating rules focused on audience compliance. Much harder. But instead of easy rules that do little good, why not propose some new ideas that significantly improve CLE? For example, formally decree that speakers follow the Guy Kawasaki 10/20/30 Rule of Powerpoint. Or, at least the ’30’ part of it.
Conclusion: A proposed approach to the 60 minute CLE program
Turns out he was a psychoanalyst.
My friends were dying to know what he did, and they asked lots of questions. I had no answers. There were no TV shows with psychoanalysts, and psychoanalysis wasn’t ever even mentioned in passing. So without popular culture to help, I was forced to gather my own clues.
On weekends my dad would take me to his office when he did paperwork. The office was weirdly dark, and it had a couch that was more like a bed. There was a large box of Kleenex on the table next to it. I was afraid to ask why the couch was there. Who had sleeping couches in their offices?
Around the time I was ten I started scanning the books on my dad’s library for more clues; there were some blue bound volumes by Sigmund Freud that caught my eye. I hated reading most of what was assigned to me in school, and this looked much more daunting, but I was obsessed with figuring out what my dad was doing. One book had the word “jokes” in the title, so I grabbed it and started skimming. The jokes weren't that funny, and Freud took too long to explain them. But I was amazed by one thing: Freud was sort of comprehensible.
My dad obviously wasn’t telling his patients jokes, so I opened another volume. I discovered that Freud seemed fixated on sex. Why would anyone write about sex in a medical book? Freud's discussions of sex (and sexual fantasies) were even more tedious than his explanation of jokes. So, I gave up; the search for useful information about my dad came to a dead end.
A year later, when I was about eleven years old, I caught a lucky break. My dad left some folders on the foyer table. One folder was labelled “A patient case study.” Inside the folder was a name of a person and then an initial. Freud had written about patients without giving their full name, and my dad’s notes apparently followed the same convention.
Finally, something written by my dad. No drawn out explanations of theory. Just simple words, which hopefully told a story I could understand.
The case report was about a 30 year old mom who was having marital problems. Since my parents had gotten divorce when I was five years old this keenly interested me. My dad wrote that she loved her husband but was having fantasies about having sex with other men. She loved her children, but felt trapped by them and sometimes dreamed of running away. I continued reading every word of the report, and then put it back in the folder. I walked away completely dumbfounded.
I finally had something very specific, and yet totally confusing. I thought that more information would help, but it made things worse.
Obviously, I couldn’t ask my dad to explain. And there was no one else I could ask either. I had been told that dad’s patient’s were “normal people.” Not people with major psychological problems, and certainly not the kind that would land you in a hospital ward.
In the coming weeks I struggled to reconcile two conflicting ideas: “normal people” (as portrayed by everything I’d been exposed to growing up) didn’t have weird sexual fantasies or dream of abandoning their kids, right? And yet my dad’s patients were supposed to be more or less “normal.”
Eventually, I learned a lot more about what my dad’s profession was all about. I learned that “normal” isn’t really what most people think it is, and that, even by most people’s definition of the word, most people aren’t normal. We’re all different, and the only thing that matters is how we feel about ourselves and how we adapt to our society and circumstances. We’re complex creatures, and yet we follow some pretty simple patterns most of the time. Those are a couple of things I learned.
Most of all I learned (at an early age) not to probe into people’s private lives without a really good reason (and there are rarely good reasons). When you spy on someone, or read their anonymous case report, you always come away with more questions than answers. The people who came to my dad needed to tell someone their secrets, but they wouldn’t reveal them if they were asked.
That's why he needed a couch. They could be comfortable and look off in a different direction than my dad. My dad sat in his chair with his yellow notepad, waiting for them to say something. Waiting, mostly, for them to receive a useful insight.
People criticize psychoanalysis and say analysts don't do anything except sit in a chair and listen. I understand that criticism, and I'm sure my dad heard it a lot. But most people in modern society don’t understand the value of silence, and how it can often lead to insight. Anyone has the physical ability to sit in a room, close their eyes, and await insight. But not many people have the inclination to do that on their own.
I doubt that many people ever will.
]]>The story began by profiling a doctor (I forget his name) who said there definitely is over diagnosis of ADD and ADHD. He was quoted as saying "I'm not saying that there are no valid cases of ADD, but just that some of the kids receiving this diagnosis aren't truly in need of medication." I was paying close attention to how he phrased his statement because I knew what was going to happen next.
Then the story shifted to B-roll footage of a small kid playing peacefully with some blocks. The voiceover was from his mom who described how her son used to be incapable of concentrating, but now that he was taking Ritalin he was fine. Then the dad came in and confirmed this. Finally, the mom was shown on camera emphasizing that, for her son, medication was the only solution.
The segment then cut over to the network anchor and the chief medical correspondent, who confirmed that some kids truly need medication. There was no attempt to address the issue of whether some kids might be taking medication unncessarily.
If you weren't paying close attention (and most people don't when they watch TV), you'd come away with the impression that the question about over diagnosis had been answered, and the answer was that ADD is not over diagnosed.
The mainstream media is not purposefully trying to retard our critical thinking skills, but that's the outcome. Creating video stories is time-consuming. And they want to "tell both sides of the story." Maybe if they had more time they'd find a case of a child that arguably didn't need ADD medication, but then that would imply the parents weren't doing their job. Even if they did spotlight a child with marginal ADD, they'd still need to establish that maybe some doctors don't think that ADD is over diagnosed.
It follows the classic TV story formula: make the story easy to tell, and easy to understand, and don't sweat small disconnect that inhibits critical reasoning skills.
Law school, and 20 plus years as an attorney, have made me hyper-vigilant about information I receive from other people. If someone is making a point I automatically start assessing the way they make the point, and the data that they use to back it up. It's too bad that more people aren't subjected to the training that law students receive.
Here's a test of reasoning that comes from the excellent book by Daniel Kahneman, Thinking Fast and Slow:
Consider this: A study of the incidence of kidney cancer in the 3,141 counties of the United States reveals a remarkable pattern. The counties in which the incidence of kidney cancer are the lowest are mostly rural, sparsely populated, and located in traditional Republican states in the Midwest, the South and the West. Now, what do you make of this information?
Most people (but sadly, I would argue, not all) quickly figure out that the fact the counties in question are "traditional Republican" has nothing to do with the incidence of kidney cancer. The thing that people tend not to focus on is that the incidence of kidney cancer will be lower in sparsely populated areas.
Kahneman argues that we have two modes of thinking: fast and slow. The fast mode gets fooled easily by "merely statistical facts," that is, "facts, which change the probability of outcomes but do not cause them to happen." And which mode of thinking would you guess that television tends to engage?
One final thought: I was watching the Charlie Rose show the other night and he had a roundtable panel of political analysts talking about Newt Gingrich's recent fall in South Carolina and the likley implications going forward. The panel was pretty diverse, and a few of the members were folks you'd see on Meet The Press or CNN. What was interesting was that the level of discourse on Charlie Rose's show was very civil and moved towards a strong consensus: i.e. Newt Gingrich was not likely to get the nomination for various reasons.
If this question were posed on CNN or MSNBC there would be no consensus, and the level of discourse would be contentious. Watching the Charlie Rose panel I was struck by the realization that, even when there is a consensus among rational people of differing views, it rarely gets revealed on mainstream TV shows. Again, I'm not saying that CNN deliberately misleads its viewers. Maybe they don't understand how their approach degrades critical thinking skills.
You'd think that being in the business of "investigating news and important social topics" that they'd move toward understanding their influence on poor reasoning skills. But, as Upton Sinclair once said, "it's difficult to get a man to understand something when his salary depends upon his not understanding it."
So the last question for analysis is this: does the media make more money from letting people argue about things that don't need as much debate if they could be explained better?
]]>After his fairly detailed overview of new technologies that are cropping up it was clear that many things that lawyers do are routine, and capable of being automated or outsourced. Lawyers don’t like to hear this, of course.
After Jordan talked about a couple of automated contract drafting tools (Koncision and Kiiac), an audience member made a predictable objection about how lawyers are needed to provided tailored drafting. The subconscious syllogism was as follows: If lawyers can provide tailored drafting of contracts, then the whole contract must be drafted by a lawyer and the automation process is completely useless.
What Jordan was actually saying (as I understood it) was: a lot of the initial drafting can be automated, and then a lawyer can step in to provide bespoke analysis. To me, this makes perfect sense. Let an intelligent system do the boring, grunt work, and then pass the results on to a human brain trained in the law. But lawyers don’t like to admit that anything they do can be done by a non-lawyer or a machine. And yet they can’t even use this higher brain power (that they claim to exclusively possess) to provide tailored analysis of routine things like the contents of regular emails.
I now offer into evidence Exhibit A, which is a typical block of text that appears at the end of every email sent out by many lawyers who (1) do not practice tax law, and (2) rarely send confidential communications:
IRS Circular 230 Disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Confidentiality Notice:
The information contained in this electronic mail is personal and confidential and is intended only for the person or persons named above. This message and the information contained in this electronic mail may be an attorney-client communication and therefore may be subject to the attorney-client privilege. If the reader of this message is not the recipient named above or an authorized agent of such recipient responsible for delivering it to the intended recipient, you are hereby notified that you have received this electronic mail in error, and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us by telephone at xxx-xxx-xxxx or electronic mail and delete the original message or any copy thereof, whether electronic or hard copy.
This verbiage could be used selectively, as needed. For example, lawyers could create an “email signature” with this text and then insert it only as needed. But they won’t do that; they’d rather just slop it into every email they send out from their business account.
So remind me again about how (unlike machines) lawyers are able to analyze each situation individually.
]]>If you want to see all the tips that we did, here's the link to our presentation.
]]>Yes, it's a little expensive, but read the article to understand why it's worth it. And, like they say, go ahead and have it professionally installed, which is the moral of this blog post.
Bottom line: to save money, to conserve energy better (help the environment!), and to have a nice looking, user-friendly thermostat, you need to check out the Nest. The company behind it is user-friendly and massively visionary. And by the way, I ordered two more Nests for the rest of my house.
]]>But that said, I also have some thoughts on the sad state of how we regulate CLE programs. Not everyone will agree with my point, and that's fine. But, if you think we overreacted to 9/11, and wound up making air travel unnecessarily harder, then you might accept my point.
But first, a quick observation.
As some of you know, lawyers are risk averse. They (and those who regulate them) think that the first step in looking at a problem is to identify all the risks and possible mishaps. The "risk-examining mindset" is developed early in law school, and grows steadily as one practices and hangs around other lawyers. What doesn't get developed by law school, or any law organization, is the ability to weigh risks in a practical way.
The TSA mindset is a derivative of the lawyer mindset: think of every possible risk and react to it fully. Why do we search old people in wheel chairs and infants traveling with their mothers? Because it's more important to anticipate every conceivable risk than it is to weigh risk with common sense or human judgment. Okay, I suppose not everyone minds the TSA approach. But, if you're like security expert Bruce Schneier (who believes the current TSA approach is nothing more than 'security theatre'), then you'll probably share my dismay at the way CLE is viewed by those who regulate it.
To understand the problem, let's focus first on the laudable objective of CLE.
Call me crazy, but the overriding objective of CLE programs should be to encourage lawyers to learn. CLE programs should be engaging, and –dare I say it– entertaining. Okay, that's the objective.
What do many CLE regulations focus on?
Mostly, they try to minimize the risk some lawyers will try to cheat and not stay for the whole program, or not really use the opportunity to learn. That's why you get a rule that says that you can't serve food at a CLE program, only coffee and mints (the D.C. rule). Or you get a rule that you can only have "online CLE" if it's interactive, which is interpreted in some states to mean that there has to be live Q&A or a live chat window where questions are answered.
Why can't questions be answered by email within a few hours, or a day later (where presumably the answer might be more thoughtful)? Don't ask. We're fighting risks here, not trying to figure out how to make things convenient, interesting, or consistent with well known principles about how our brains learn most effectively.
Most CLE speakers that I've seen do a poor job. Sorry, but that's the truth. And if you polled every attorney who's been to five CLE programs you'd confirm this with data.
The bad speaking happens not because the speakers are incapable of doing a good job, but because: (1) it's not something they tend to do often, (2) they're not usually paid or given any incentive other than "notoriety," and (3) they don't usually craft their speech for use at more than one event.
Good trial lawyers are in court a lot and handle a lot of cases, and they get good by getting a lot of experience in the courtroom. Some of those lawyers might be good CLE speakers, but they're usually busy and it's hard to get many of them to take time off from their lucrative practices with the simple lure of "notoriety."
Good CLE speakers are rare. That's a fact.
Obviously, if there were more good CLE speakers, or if the system somehow created better incentives for CLE speakers to improve, then more lawyers might benefit from mandatory post-grad education. Instead, according to the metrics I'm hearing at the ACLEA conference, 70% of the lawyers who get CLE don't care at all about the educational component; they simply look for the most convenient program that will satisfy their reporting requirement.
I'm don't consider myself to be an exceptional speaker, but I work really hard to create interesting talks that are also practical. When I create a new talk I find ways to give the talk repeatedly so that I can tweak it, and refine it. This is what you have to do if you want to give a speech that is well received. You have to figure out what works and what doesn't by speaking and then self-evaluating your performance. Then you change it up and try the new approach, until eventually it clicks. This would be true of a five minute talk, but it's especially true of a hour long speech.
It took Jerry Seinfeld a year to come up with an hour long comedy show (watch the movie Comedian). A year of working full-time on nothing but creating that one hour's worth of material. Seinfeld did this after he created his hit show, at which point he had obviously developed serious chops as a comedian. To develop his hour's worth of material he had to go do shows in dive clubs, and a lot of his jokes flat out bombed. But he knew that the only way to get an hour of top notch material that was to practice in smaller venues, and to do LOTS of shows.
Pretty much every CLE program lasts an hour, or close to it. How much time do you think that most speakers put in? (Obviously they aren't trying to make a living at speaking like Jerry Seinfeld. But, still, they're going to take up an entire hour of an audience's valuable time.) And so how much do they prepare? The answer, usually, is: not much. Maybe an hour or two, at most. In some cases, maybe a little more. But that's not enough to give great a great presentation. And like I said (and sorry if this is disagreeable), most presentations stink.
I've seen well-respected leaders of the bar bore audiences by reading from old Powerpoint slide decks that they didn't even prepare. If they went into court and bored a jury the way that they bore their CLE audience they'd lose notoriety, not gain it.
Lawyers pay good money to receive instruction about topics that are critical to their practice. The lawyers in the audience value their time as well. If some of them aren't paying attention it isn't always because there are snacks being offered in the back of the room, or because they don't care about learning. It's because the talks are boring. The talks are lifeless. The talks are disorganized. Not all of them, but plenty enough.
So why am I risking my livelihood by doing full-time CLE speaking? People have peppered me with skeptical questions.
When you start a new business people invariably ask "who's your target audience"? My target audience is: those lawyers who figure, if I'm going to have to sit through a seminar to get CLE credit, then I'd rather go to one with interesting speakers who know how to explain what I need to know efficiently. Even if only 30% of lawyers want good CLE (and I think it's higher than that), that's still a lot of lawyers. The problem for people who want to do great CLE is that most lawyers are conditioned to expect mediocre CLE. So, what my company has is "a marketing problem."
Most of our "target audience" doesn't even know the product they want is for sale, or who they would buy it from if it was.
When Dane and I do presentations people invariably say "my God. I had no idea that anyone was doing CLE programs like this." We know that we're not the only ones. There are other people who are doing great CLE, and trying innovative approaches that inform and entertain. Those folks walk a tight line sometimes. The more innovative you are they more likely you are to have a regulator say that what you're doing is too risky and not allowed.
What does good CLE look like? Have you seen a great CLE presentation? If so, list the name(s) of the presenter(s) in the comments and give a link to their webpage. My well-meaning skeptics also tell me I need to figure out who my competition is, and those skeptics would probably say, "hey, Ernie, why help identify those people, aren't those other good speakers your competition?"
To which, I'd respond: no, those are my brethren.
]]>Kodak was once a great company that ruled the photographic industry's roost. Today it's in bankruptcy, while its main competitor in film sales, Fuji, is thriving. Fuji, adapted more quickly to the digital world, and today makes some very popular (and expensive) digital cameras.
In 2006 Kodak's CEO Antonio Perez was invited to the All Things Digital Conference in California — hosted by tech guru Walt Mossberg. This clever video created by Kodak's ad team kicked off Mr. Perez's interview. Then it went viral on YouTube and was shared on over 3,000 technology blogs. The video was also played at internal employee meetings and shareholders and investor events. Like I said, it's a great video.
Perhaps when the bankruptcy is final (after Kodak's desperate flurry of "save the company patent suits" have been put to rest), they'll play the video one more time before they flick off the lights. Too bad they didn't use the imagination it took to create this video to run the company. Using imagination to create a cool video is hard, but it's almost impossible to use it to guide a big company into a new frontier; big companies, like all large groups of humans, always regress towards the mean.
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