One of the most significant developments in our changing times are the changing views on time. Those who are thirty-something or over will recognise the change when they hear the expressions 'need for speed' and 'strategic agility'. What other evidence is there of changing views on time in business and in law? What are the implications? Here are introductory notes.
Today, as you read this Lightbulb law blog post you are or have just finished multi-tasking. Your mind is likely on your next task. While you read you may be re-arranging your desktop, scrolling through your email in-box, or wondering about lunch, dinner, or picking up a child from pre-school.
Unless you are in down time, you will feel under the clock. This topic is explored from many perspectives in Speed @ Work a collection of papers published in 2006 by the Australian Institute of Management and Wiley. Two of the more interesting papers in the book inspired this post. One was by Bernard Salt, a partner with KPMG, who writes of changing work practices in the office environment. The other was by a consultant Michael McAllum titled 'Strategic thought: getting ahead of the curve'. McAllum emphasises the need to plan and time product and organisational development to boldly anticipate, forecast, invest in and capture new markets.
Time is more than money. Not only is it perceived to be a unit of currency, it is also used to schedule work, leisure, lives. None of this would be as noticeable were it not for the pervasive use of time keeping devices. In business and law time has long been a cornerstone of consciousness. Today the perception that time is being compressed as we are forced to multi-task is changing business habits, practices and expectations.
Time in business
In business certain changing habits, practices, perceptions and expectations have profound implications. If you are a busy office worker you will immediately recognise the following five striking examples of change:
- MERGING HOME AND OFFICE WORK With performance measures based on outcomes have come teleworking, ie working at home logged onto the office IT system. Those who have reviewed historical data indicate Australians are not working longer hours. However there is a change. Office work is invading home life.
- CONTINUOUS DISCLOSURE In 2006 legislation for continuous disclosure by corporations about their financial affairs to the ASX and others is contributing to the decline of printed annual reports. Almost half of the top 200 companies in Australia no longer print annual reports. More and more shareholders read or received them online. Time to market has speeded up.
- MULTI-TASKING Today we multi-task in the office, ie we perform more than one task at a time. Ten years ago it was common for lawyers and managers to work with a secretary to prepare correspondence and then file it for later retrieval. Now we are at our desks, alone. The time of individuals is being sliced up, work is less leisurely.
- CORRESPONDENCE TURN-AROUND TIMES Today we expect faster correspondence turn-around times. Twenty years ago it was good business etiquette to reply to a letter within two weeks. It was not uncommon to reply in a month or so, beyond that it was expected that you might write to say you will reply shortly. Faster response times are expected.
- INSTANT MESSAGING We are heading towards ubiquitous digitisation of print, voice and data traffic. One word for this is Blackberry. Those who send an email (ie print) expect an answer like a telephone message - on the same day or the next business day. To cope the office worker must multi-task. Expectations about turn-around times are being standardised towards instant messaging.
Time in business and IP litigation and business law
In business and IP litigation more than ever opponents make crafty use of time. This can be useful for speedier resolution of disputes; it also means that the law does not wait for the unprepared or those lacking resources. Court rules governing litigation have a waterfall of time-based mandatory requirements.
In non-contentious business law time has long been used as a very common tool. Without proper testing I can't say that here views on time have changed over say the last 20 years.
Time has continued to be one of the most pervasive concepts in business law. Expressions about time have to be thoroughly edited in legal documents, eg "on or before X date" is preferred to "by X date". Time provisions are useful in law, time is recorded in numbers, it provides greater certainty. Hence lawyers love to write time into contracts and legislation. If you ask a business lawyer whether written notice has been given on time, the answer becomes a relatively simple search for evidence on hours and dates. In contrast, if you ask a business lawyer if adequate notice has been given under a certain law, the required qualitative response can mean there is less clarity.
Where time is mandatory in law, failure to give notice on time or do something on time can be fatal. Businesses are exposed to innumerable state and federal legislation and international conventions all of which require responses on time. If you fail to make a due tax payment, for example, you will have to make the payment in time, plus interest, and maybe plus a penalty. ASIC charges more if notices and forms are not filed within deadline times. Trade marks registration costs more if beyond a certain time there are delays in responding to an examiner's report. And so it goes, especially when litigation is taking place or on the horizon.
Implications of changing views on time
The implications of all this for legal compliance and business priorities are profound.
They make it more important than ever to keep up-to-date calendars, diaries and to do lists and to share them in work teams to ensure key dates are not overlooked.
At a higher level the implications of the perceived need for speed are that it has become imperative for any decently run business to implement full and proper record keeping, IT back-up, disaster recovery, knowledge management and compliance systems. Clients should seek advice, training and support for such systems from inhouse staff and external advisers. Many large law firm offer computer-based legal compliance systems. There is no longer any alternative to having at least some systems. Business inefficiency, failure or insolvency are inevitable at some time without them.
Strategy time is not a time for short-sighted planners
The profound implications for business discussed above pose major challenges for planners and senior executives. I want to end this post by focusing on one problem area - that of short-sighted planners who do not see beyond short term wants or needs.
Strategic planning, or business planning as it is often (and wrongly) referred to, is an area of one of the most significant shifts in changing views on time in business. Twenty years ago a business planner could charge $20,000 for a decent long term business plan for an SME, less for a start-up. The price dropped thousands as software for planning became more prevalent, not that the software did anywhere near as good a job. Then at about the year 2000, about the time the dot bomb bubble crowd caused a frenzy in town, the widely accepted and common long term planning horizon collapsed down from say five years, to at most two years.
My perception is that long term planning has stayed out of vogue in both the private and public sector. Short termism has emerged as the new epidemic. For example, new underground road tunnels in Sydney have a mere one or two lanes; all very shocking when multiple lanes were deemed appropriate for the future for the Sydney Harbour Bridge for which construction commenced in 1923.
For much of the 20th century long term planning used to be a standard. There's a lot to be said for long term planning despite the current vogue for being fashionably short-sighted. In our firm we believe in proper planning before we commence contract drafting or closure of deals.
John Castella, Managing Director of Castella Wines which produces the wildly successful Yellow Tail brand believes in planning and having deep industry foresight. For Castella Wines exports account for 95% of production. Yellow Tail is the number 1 imported wine brand in the United States and holds 10.3% of the category according to ACNielsen in 'Total US Food, Drug, Liquor' for the 52 weeks ending 14 February 2004. Mr Castella's hints for success include:
- 'Stay focused. If you've got a job to do then worry about that job, don't become distracted. ... Really understand the industry that you're in, the products that you're dealing with, your customers and the market you're going to.' (Wealth Creator magazine, October 2006).
Castella's tip for success and McAllum's paper in the Speed @ Work book both remind me of one of my personal top 10 books of the 1990s. It is a book on long term IP and business strategy with ideas that have not dated. It is the 1994 Harvard Business School Press book titled Competing for the Future by Gary Hamel and C. K. Prahalad (both professors in business management in the United States and consultants to large corporations). Central concepts in the book are the need for businesses to use planning to develop 'industry foresight', to then act with 'strategic intent' and to focus on building 'core competencies'. The authors support this with illustrations of numerous companies which have achieved some of this and taken a slice of the future; versus companies which have achieved all of this and made their future and in some cases their entire industry.
In our firm we apply these concepts when confronted by a client seeking commercialisation legal advice. The desire for speed is commonly expressed by clients. To this we must add that for successful decisions to be made for commercialisation it is vital to have sufficient 'industry foresight', with a real 'strategic intent' (not a half-hearted desire to put a toe in the water), and with the aim of strengthening and building the client's 'core competencies'.
The appropriate decision-making process is for us to work with our client to look back and look forward. A good intellectual property lawyer must not only be a good archaeologists (like most lawyers) but also a good futurist, aware of but not dominated by contemporary changing views on time.
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