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Playing the game

Could game design be about to revolutionise legal services? GC finds out how in-house and private practice teams are toying with gamification in an effort to improve the delivery of legal services.

Gaming the law

You may not have heard the term ‘gamification’, but the chances are you’ve experienced a form of it.

Perhaps you’re an executive in a FTSE 500 company with a generous bonus triggered when your performance meets certain conditions. You could be a corporate client, flicking through the highly-ranked lawyers in The Legal 500, preparing to draw up a shortlist for your next high-value deal. In each case, you would be responding to an element of gameplay dynamics, subtly influencing your judgement, or motivating you to make particular choices.

Gamification is a way of codifying these dynamics into a system designed to incentivise desired behaviours, or, put simply, injecting game design into non-game fields to make them more fun.

As humans, we all enjoy games. But Yu-kai Chou, a gamification pioneer, loves them more than most. ‘I was a very heavy gamer. I would devote thousands of hours to master a game. But eventually you have to move on, stop playing one game and move to another, and that’s when I felt extremely empty – I felt that all these thousands of hours were lost and there was nothing there,’ says Chou.

‘I started to think: is there a game that everyone is playing, but the more hours you spend on it, the better your real life is? That started me on this pretty obsessive journey of saying “Hey, there doesn’t have to be a divide between work and play, between the things you have to do and the things you want to do.”’

Chou became one of the earliest proponents of gamification back in the early noughties. Now a thought leader in the gamification space and a consultant to progressive corporates like Google, Lego and eBay, Chou has set out to design systems and solutions that can benefit business. All they need to do, he says, is unpack what makes games fun, then reproduce those elements wherever engagement is lacking.

What makes a good game?

Chou’s thinking isn’t restricted to computer games. A game might not even look like a game – a poster on the wall could be gamified, he says. But rather than simply picking out game elements (like competition, points or badges), Chou believes it’s more instructive to understand why games appeal to us in the first place. He identified eight ‘core drives’ behind every human behaviour and built a gamification framework around them, called Octalysis.

‘Some people call it behavioural engineering, but it is a more scientific methodology. I’d say the core drivers are the fundamentals of gamification because they are basically how the brain works. If there are none of the eight core drives there, then there is zero motivation – no behaviour happens,’ he explains.

Chou’s ‘human-focused’ (as opposed to function-focused) design optimises game design by understanding that people have reasons why they don’t want to do something – as well as why they do – before considering solutions. His Octalysis framework therefore groups the drives, and offers a structured analysis of when and why they might be best employed.

‘White hat’ core drives [for example: meaning, accomplishment, empowerment, ownership] make people feel good, powerful and in control, but there’s no sense of urgency. Users intend to do something, but they tend to do more of a cost-benefit analysis first because they’re fully in charge.

image of Octalysis diagram

‘Black hat’ core drives [for example: social pressure or avoiding a penalty] make people feel urgent, obsessed and addicted, but in the long run will leave a bad taste in their mouths.

‘Therefore, white hat core drives are more useful for long-term engagement – employee loyalty, committee management,’ explains Chou.

‘In contrast, black hat core drives are for more short-term activity – maybe closing a deal or a three-week competition within the workforce. In that period, everyone’s pumped and motivated, but if it was a year-long event, then people get burned out.’

Similarly, there are ‘extrinsic’ versus ‘intrinsic’ core drives. In the former, a desired behaviour has a reward attached, driving fast results as people pursue the prize. But once the reward is achieved, they lose motivation. In the latter, the activity itself is enjoyable, and therefore is its own reward. The results might take longer to arrive, but they are self-perpetuating. According to Chou, a good piece of game design will build several core drives into the system to create balance.

Gaming the law

Most lawyers would not probably characterise their working day as saving the world (despite what they may have planned in law school). But some believe that gamification is about to hit legal services in a big way. In the past year alone, Chou has been invited to present at three of the five biggest legal conferences in the UK. And in the US, law firm consultant David Freeman has sensed a similar movement.

‘I did a small survey earlier this year and it’s happening. One firm was using it in teaching substantive legal skills, for another it was improving time entry, others used it for business development skills, another firm used it to try to identify emerging or overlooked opportunities in the firm,’ says Freeman.

Freeman has worked with Chou to build a cloud-based system encouraging law firm fee-earners to cross-sell to clients the services of other practice areas within their firm – currently a largely untracked process. Lawyers can sign in and identify specific clients that they’d like to give to other lawyers in the firm, or opportunities they would like to receive. They are prompted to go through steps in the process, and the system can send automatic reminders, as well as offer automated guidance and coaching. The system is gamified by allowing users to track their progress and rank themselves against other users, while the firm itself is able to view statistics and manage the process.

‘Lawyers are very difficult people to tell what to do. There are things that, if they are a little bit too game-y, lawyers can resist it right off the bat, so they still have to have a certain element of professionalism to it. There’s a real art form in that,’ says Freeman.


Gamifying panel performance

LexPredict CEO Michael Bommarito explains software platform LexSemble

‘We work with insurance companies who have panels of outside counsel firms. In the past, a panel of outside counsel firms might exist in a vacuum; they kind of know who their peers on a panel are, but they’re not really measured in a way that is made public to them. We do work that changes that.

The panel might have a leader board, and all the firms on the panel might have a certain number of points. That could be at the resource level, like the associates or the partners working there, or it could be at the firm level. They might have a score or points assigned based on, let’s say, average time to respond to a call from a client.

The end result is a different experience for the insurance company when their outside counsel firms become aware that, let’s say, “Firm B tends to respond quicker than we do when the client reaches out.” They might start to think along the lines of “Is that something we’re ok with?” Maybe: “We are more thoughtful with our responses”, or maybe: “I need to have a chat with our associates to make sure they’re paying attention to email or phone calls.”

You can say: “This firm responds twice as fast. In a PR issue, or maybe a data breach like Equifax, which firm am I going to pick in an emergency? I’m probably going to pick the firm that’s going to help me get started on this most quickly.”

When you expose this information to the firms, it helps a little bit. But when you structure that information within a game or an incentive structure, all of a sudden, you start to improve behaviour in ways that are open and transparent.

There’s usually an incumbent owner of the work, and they generally dislike any change. But there are those challenger firms, the second or third firm, often with a younger partner who’s looking to earn a bigger book of business, and they might even be proponents of some of these changes, because they see that it’s an opportunity to overturn the incumbent firm and to win more work.’


For some system designers that art could come in the form of another of Chou’s behavioural insights, that of ‘implicit’ gaming: if you have a group of people who might refuse to play a game, don’t tell them it’s a game. Implicit gamification could look, for example, like a customer management system, but with a live interface of game elements that nudge different behaviours, like performance tracking, scoring, or a leader board.

‘Even if lawyers resist a mandate from the firm to do it, there’s another part of them that likes to see how they are ranked against others – and if they’re not ranking well, they don’t want to be embarrassed. As well as any extrinsic rewards the firm may offer there are intrinsic rewards like the feeling of mastery, of becoming a master of the art of cross-serving your clients,’ Freeman reckons.

Tactics

If gamification pits our unconscious against our conscious to trick us into having fun, the flip side is that a user’s performance could be used against them – which some might find a little insidious. But according to legal services consultant and gamification practitioner Michael Bommarito, it’s actually the opposite.

image of computer game

‘There are many ways we can incentivise behaviour in an opaque way, which potentially can actually result in unfair decisions. I think one of the blessings and the curses of games is that they make all of that open. Scores are generally open, peers are generally visible, and so there’s an element of public shaming that’s not always easy to deal with. That requires some kind of change management or cultural question and answer internally in an organisation,’ says Bommarito.

‘But I think we should all be honest with ourselves – that kind of reward and shaming happens anyway. The only difference here is that we’re being open and honest and transparent about that dynamic, and we’re giving people the opportunity to see the reality and to improve.’

One of the flagship products developed by Bommarito’s consultancy, LexPredict, is LexSemble, a software platform used with both inside and outside counsel. Fundamentally, LexSemble is a knowledge management system built upon data that has been crowdsourced from within an organisation, which is then used to provide insights and forecasts to the business. LexSemble does this by aggregating and sorting the crowd-sourced data, such as opinions from within the business, and using it to create predictions and present relevant conclusions. Over time, the accuracy of these predictions is fed back into the system, allowing it to adapt and recalibrate accordingly – for example, by learning which of an organisation’s experts has the most predictive value in a given area.

Through his work with LexPredict, Bommarito has found that law firms can be reticent when it comes to applying gamification to their business – but that doesn’t mean that there isn’t a form of Chou’s ‘implicit’ technique being employed.

‘We may not use the word during our consulting engagements, but it is what we’re doing. If you really want to do it, you can hide it in plain sight,’ says Bommarito.

‘But I think everyone is better off if we’re just open and honest and transparent about what we’re doing. If it’s rule-based, then let’s just write down the rules and score the rules and let’s show the score.’

Gaming culture

Ultimately, the decisive factor for whether to go ahead with gamification is understanding your company culture – and gauging whether it is conducive to the approach.

The tagline on the website of French drinks manufacturer Pernod Ricard is ‘Créateurs de convivialité’, which directly translates to ‘creators of conviviality’. But conviviality and compliance training (with its attendant lengthy policy manuals) aren’t always natural bedfellows, and so, after hearing of the success that their colleagues in marketing were having with a gamified training tool, general counsel Ian FitzSimons and the legal team at Pernod Ricard decided to give it a try.

The team worked with an external company to design a ‘MOOC’ (Massive Open Online Course) to teach users about compliance, incorporating gamification elements such as competition, badges, and levelling up. A few years on, the MOOC is still in use, and about to re-launch to take account of developments in French compliance law.

The MOOC has improved engagement in compliance training at Pernod Ricard, but legal counsel in the company’s local markets are empowered to use their discretion to provide additional training using the method of their choosing (including traditional, face-to-face instruction) as well.


Gamification at Pernod Ricard

GC Ian FitzSimons describes the company’s online compliance training

‘Compliance, for most people (certainly in leisure companies) is pretty dry, so you have to find some way to engage people and make it fun. Also, people tend to remember what they do rather than what they hear or what they’re being lectured on.

The MOOC (Massive Open Online Course) system that we’ve adopted is essentially based around starting with very short videos, one and a half to two minutes maximum, followed by a system of multiple choice questions to make sure that people have retained what they’ve heard in the video. If they get it right, you give them some additional information in a little pop-up window – so if you ask them what’s the biggest-ever fine in a particular area and they get it right, you would tell them who it was and what they’d done wrong.

There’s an ability to challenge other people to a battle in relation to the content and see who gets the most points, and there’s also a table to show if people have done well or not at the test. It has a medal system as well, of the sort you get in an online game – you essentially get badges.

The other thing is, you have to do certain levels before you get to other levels, so you can’t do your in-depth competition law training module until you’ve done the basic module. That enables us to keep people interested, but also to pitch the training at different levels in the organisation – not everybody needs to do the in-depth training on every area of compliance. Introducing that kind of granularity enables you to target different functions and different parts of your workforce, depending on their needs.

The system is translated into certain languages – I think it’s about five languages at the moment, and we’re probably going to translate it into a couple more.

I think you need to have a relatively flexible platform, because you’re talking almost by definition about areas that will evolve. You don’t want to have to re-do it; you want to be able to add on a chapter or a module.

We’re actually doing a “2.0” reboot. We’re not redesigning it in any way, but in terms of content, we have seven chapters at the moment and we’re adding a couple more. We’re also effectively changing some of the content to cater for new French rules. So we thought we’d take the opportunity to have a bit of a re-launch and create some buzz around that. In addition, one of the things that senior management has asked for is to make it compulsory.

Since introducing the MOOC, take-up has improved but has been patchy, I would say. Some parts of the organisation have been excellent, some parts have been good and some parts haven’t been quite as good as we would have liked. A lot of it centres upon how hard it’s been pushed by local legal resources in those parts of the world, and obviously that will hopefully become better as we make it compulsory – but there will still be a system for monitoring that people actually comply.’


‘I think what we have to be careful about in any company is just too many online courses – whether it’s with gamification or not – and suddenly every department is doing it. At some point, people are just overwhelmed at the amount of online training they have to do,’ says FitzSimons.

‘You have to keep this sort of thing relatively short and sweet. And you have to be selective about what level of training you want to target through gamification and what you are going to do via other means. Because, let’s face it, if you’re talking about millennials, the level of gamification is mildly interesting in comparison to the games they’re used to playing!’

FitzSimons adds that, in introducing gamification to Pernod Ricard’s compliance training, there have been learnings along the way.

‘I think we should have made it compulsory and I think we should have made a bit more of a big show of it when we launched. Timing the launch is quite important, and how you launch – we made a film to go with it, but it has to be something that brings people in. The timing of the year can also be extremely important – within a company which is cyclical in its business, you have to think about things like that.’

Switching Off

Any process overlay runs the risk of creating alienation if it is not designed sensitively, particularly when progress is being tracked and monitored. In an echo of Chou’s white hat/black hat drives, Bommarito warns of potential adverse psychological effects, particularly in large organisations.

‘It can feel somewhat draconian or Orwellian. I think there’s a fine line between making your attorneys feel like they work in a call centre and making them feel like they have positive incentives and are part of a group with some social benefits,’ says Bommarito.

‘You want there to be positive incentives and you want there to be positive reinforcement as much as possible, so that these are goals that people strive for, and not things that they are penalised for. So there’s definitely communication challenges and framing challenges.’

Where it has been implemented properly, gamification has shown the potential to become a novel addition to the legal services toolkit: both as a way of overcoming disinclination to complete the less exciting, more routine elements of the in-house lawyer’s job, but also as a way to galvanise service providers. As Chou points out, and as forms a central part of the gamification ethos, understanding how to engage the brain is the foundation to driving human motivation – and ultimately securing a more productive legal team.

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