Peter Drucker

Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to Disraeli would often apply with justice and force: ‘There are three kinds of lies: lies, damned lies, and statistics.’

Mark Twain

It is difficult to measure results in many legal matters.

When I was general counsel, attorneys would come into my office and trumpet a great resolution:  a case dismissed,  a terrific settlement ,  on occasion, a judgment in our favor.  We celebrated, but should we have?  For instance, when is a dismissal a victory?   To answer that question honestly, at a minimum, a determination needs to be made as to whether a similar result could have been achieved less expensively and more quickly.

Then there is the challenge of assessing the merits of a settlement.   Settlements are typically measured against the assessed risk of a matter.   Lo and behold, most settlements I have seen come right in under their assessed risk.   So, are we really able to measure a result that way?

They say a good settlement is one where both sides are unhappy.    I once called our CEO to tell him we had negotiated a  “good” $400 million settlement.    His reply was short and (not so) sweet, “Listen @#X%*, it is never “good” to pay $400 million.”    Assuming the plaintiff reacted similarly, perhaps this case met the mutual unhappiness metric.

We also need to ask, was there a way we could have resolved the  matter before proceeding to court in the first place?    Could the business principals have sat down and talk sans lawyers?  So many times, not enough energy is devoted up front to resolve a matter.  The business people try, give up and punt it to the lawyers, who blithely proceed to court and it takes a long time before the resolution ball lands back on the field.

In addition, shouldn’t we assess the manner in which the matter was resolved?   What was the relationship between our client and the client on the other side?  Was that relationship preserved, restored or destroyed?   How was our approach to this dispute perceived in the media?   By our customers?   By regulators?

We need to develop metrics that allow for the results of resolution to take into account the full picture, not simply the amount of money that changes hands.

What metrics do you use?

Martin Luther King, Jr.

This is the fifth in a series of posts on how lawyers, inside and outside, can build credibility with their clients.   Being a superb practitioner of law, while the foundation of earning a seat the table, will not, in and of itself, allow you to stay at the table.  Effective attorneys focus on doing more, they focus on what I call the six Cs, the fifth of which is developing consensus.  .

As we all know,  in-house attorneys represent the organization, not any particular employee or officer.   As a result, we frequently bring together various decision makers within an organization so that the organization makes a knowing decision about a legal issue.

Over time, our internal business clients become accustomed to attorneys playing the role of quarterback or point-guard or scrumhalf.    And not simply with respect to legal issues, but as to any of the issues of that a leadership team must consider.

As General Counsel. I often spent time simply making sure that one senior executive has spoken to another senior executive about a common business issue.   For instance, let’s say we were considering buying a business that would be complimentary to our existing operations.  Had the M&A wonks spent time with our operations folks to make sure that this was a business we would be able integrate?  A simple and reasonable question,  but the type of question that often would not get asked or not get asked in time.  That is where in house counsel can serve a valuable consensus building role, by asking these simple questions.

Undoubtedly at times an internal client may become annoyed at an attorney playing this role.  Accusations of meddling or worse can be leveled.  But, because internal clients are used to in-house attorneys  as shuttling diplomats, effective in-house attorneys can often play this broadened role without ruffling feathers.      And, in doing so, you help keep your seat at the table.

                                                                                                                                — Lee Iacocca

This is the fourth in a series of posts on how lawyers, inside and outside, can build credibility with their clients.   Being a superb practitioner of law, while the foundation of getting a seat the table,  will not, in and of itself, allow you to stay at the table.  Effective attorneys focus on doing more, they focus on what I call the six Cs.  The fourth is helping the team communicate.

We have all seen dense, acronym-ladened , Death by PowerPoint presentations similar to the one highlighted last year by the New York Times.    I am convinced that good and even great ideas often fail to get the   “green-light” at companies, not due to the quality of the idea, but due to the quality of the communication.

Attorneys are great communicators:  we spend every day taking the hideously complex and making it simple and accessible.   Effective attorneys use their well-honed communication skills  to help their clients communicate more clearly about far more than legal issues and in many fora other than the courtroom.   Strategies, analyses, products, performance, you name it, great lawyers can help improve how the business communicates it.   And, if it is done respectfully, the internal clients will quickly see the value and come back time after time, because, in the end, it makes them look better.

At the risk of overstating this, a great lawyer can use their communication skills to set free the intellectual capital of the organization.  Sounds like fun.

Wendell Willkie

This is the third in a series of posts on some ways for lawyers, inside and outside, can build credibility with their clients.   As I mentioned in my first post in this series, everything starts with being a superb practitioner of the law.   But those who really distinguish themselves build on that foundation and add to it at least six characteristics.   This post addresses the second “C”:  assisting your client in thinking critically.

I take the arrogant view that the lawyers are often the best thinkers in an organization.   Lawyers are trained from the day they start law school to determine the facts, determine the rules and then apply the rules to the facts.   This simple discipline is not necessarily innate to many business people.   Business executives place a premium on action, but, often times, at the expense of sufficient analysis.   That’s where lawyers can be so valuable and help build their credibility within an organization.   But how do you do this without losing your head (or job)?

Wikipedia used to have a great definition of a devil’s advocate:

The advocatus diaboli is sometimes referred to as a team role. While some sources regard the role as a “destructive” team role, others see the role as a constructive one.  According to the second group, the task of the advocatus diaboli is to improve the decision making processes and to prevent individuals and teams from coming to conclusions without sufficient consideration.

This sums it up well.   Now, I am not advising that you sit in the corner of a conference room and dish out fire balls of questions designed  to  highlight your intellect (and difficult personality).   Instead, questions posed in a respectful, collaborative  manner (i.e. “How do we respond, when X argues that . . . .?”) can help  the group think through the issues.   You can also help the organization assure that it has all of the facts, not simply the facts presented by an employee executive recommending action.  Questions as simple as, “I know we believe that the projected  costs to develop this product are going to be X, but have we gotten our arms around  what it is going to cost to secure the licenses we need?”

At times, playing this role will (at a minimum) garner the lawyer a withering look from the action-oriented executive.     But, over time, if done respectfully and with good judgment, the lawyer can be counted on as an advocate for careful analysis and not as a naysayer.

Not easy, but, when done well, playing the devil’s advocate can get the lawyer an invitation back to the table (at least for lunch).

Ralph Waldo Emerson

This is the second in my series of posts on how lawyers, inside and outside, can best build credibility with their clients.   As I mentioned in my first post in this series, the price of admission is that you must be a superb practitioner of the law.   But, those who really distinguish themselves build on a foundation of technical skill and add to it six other characteristics (the Six C’s).  The first of the sextet is demonstrating a passion for the Company: its products and its business operations.

At Qwest, there was an attorney who made early adopters look like late-techno-bloomers.  This helped give him more credibility with the company’s business executives.  Should it have?  Probably not.  Did it?  Absolutely.

Due to both our role and our personalities, lawyers tend to be removed.  But, this sense of detachment can be interpreted as a lack of enthusiasm for the business.    You wouldn’t want a business executive to be emotionally removed from the business for which she is responsible.   Business executives feel the same way about their lawyers.    Or to put it differently, when an attorney exhibits a passion for the company’s products and services, it can greatly distinguish that attorney from most others.

Now I am not talking about simply repeating the mindless corporate-jingoism.  Instead, spend time learning about the company’s services and products and develop a true appreciation of them.   This will not only allow you to be a better advocate for the company, but it can help get you a seat at the table.

Oscar Wilde

This blog is supposed to be about, among other things, technology, so I thought I would touch on a recent tech development about which I am pretty excited.    There are tons of great blog posts about how the iPad is rapidly becoming a valuable tool for lawyers.    Let me join the cacophony by touching on a great app that has not gotten much play:  Microsoft’s OneNote app.

One of the biggest challenges for in-house attorneys is the amount of information that passes by in a day:  emails, meetings, calls.  I likened the flow of information to the Mississippi river, it moves by inexorably, minute by minute, and no matter what you do, you cannot keep up.     I constantly struggled with finding a way to capture what was important.  I experimented with everything from portable computers, to tablets, to old fashioned paper.

Nothing seemed to allow me to capture everything I needed, until I discovered Microsoft’s OneNote software.  It is a spectacular notetaking program that allows immense flexibility in how information is captured and organized.    You can take notes (typed or handwritten),  incorporate internet search results, web sites as well as references to Word, Excel, PowerPoint and PDF documents.   It interfaces seamlessly with Outlook.  It has amazing handwriting recognition.  In addition, you can assign different categories to portions of your notes.  One of my favorite features is the ability to tap on a question mark icon every time I took a note about something  on which I wanted to follow up.   The program then allows you with one or two clicks to run a report that excerpts each note to which a question mark was assigned.

One of the only problems I had with OneNote was that I found it was always awkward to type with a laptop computer at meetings.  I did it, but I was always concerned by the physical and psychological wall created by the laptop’s  screen, particularly when I was  interviewing someone.

The problem was solved (almost) when Microsoft issued a OneNote app for the iPhone (which works fine on the iPad).  I say almost, because it requires you to type as opposed to using a finger or a stylus.  Other than that one inadequacy, which I am sure Microsoft will remedy, it is a great way to use your iPad or iPhone to capture notes.  The beauty of the app is that by using the synchronization feature, all the notes you take on your iPad can be easily synched with your PC and iPhone.

While it may not make me feel like Huck Finn, the OneNote app allows me to use my favorite way to capture and organize notes on my favorite piece of hardware.  Not a bad way to negotiate the Mississippi of information.

Elihu Root

A common complaint of many lawyers, particularly in-house attorneys, is that we are always brought in “too late” by our clients.  And, most attorneys feel this is the client’s fault.  Perhaps, but, there is a reason why clients don’t involve their lawyers earlier in the process: it is about trust and credibility.

Many clients view their lawyers as tools, effective tools, but tools nonetheless that the client deploys when and if they see fit.   When we are not being viewed as tools, it can get even worse, sometimes we are viewed as naysayers, deal killers, Dr. No’s.   We so desperately want more; we want to be part of the team, but those pesky clients just won’t invite us.  Therein lies the problem:   we cannot wait to be invited to the team, we need to make the team.  We must earn our seat at the table.

Easier said than done, of course, but it is achievable.  Ben Heineman, one of the foremost thinkers on corporate governance and corporate legal practice, writes eloquently about this topic.   I look at the solution in more prosaic terms.

To start with, you need to be a superb practitioner of the law, so that your client trusts you implicitly as to your legal advice.   But, that is table stakes.  There are a lot of superb technical attorneys, who never really make the team.  Those who truly distinguish themselves in house build on a foundation of technical skill and add to it six other skills (the six C’s):

• Exhibit a true passion for the Company, its products, its business operations, its culture – If you are not buying, they won’t let you sell.
• Assist the Organization to Think Critically – carefully, deftly, assist the organization you represent think more critically – it is a key skill you possess and from which the business can benefit greatly.
• Help the Team Communicate and Develop Consensus – Often times the in-house lawyer can be a valuable go between, helping the various members of the business team develop consensus.   Moreover, great lawyers are great communicators and can use that skill to assist their internal clients in communicating on numerous matters, not only legal issues.
• Serve as the Conscience of the organization.
• Be Courageous – In this day and age, where seconding guessing in-house lawyers has become a blood sport, it is easy to tell your client no;  no is rarely second guessed.  And, as Elihu Root notes above, no is sometimes the right answer and it takes courage to say it to a tough executive.  But, sometimes yes is the right answer, even if you know that some misguided reviewer is going to second guess that answer.  And, that takes real courage too.  It is said that courage is simply the willingness to be afraid and act anyway.    Clients like those with courage on their teams.

I intend to post on each of these “C’s” in more depth in the upcoming months.   But, if you have reactions now, please go to my blog, www.relianceoncounsel.com , and post a comment.

Pat Riley

Perhaps lawyers are too steeped in precedent; perhaps we have lost the sense of value (assuming we ever had it), but we lawyers are inefficient.    As I am fond of saying, only half facetiously, ours is a profession that has not changed in the last 100 years  . . . and is proud of the fact.   Doctors have continued to improve how they treat patients; had they not, many of us would not be here today.   Lawyers, on the other hand, have not changed how we deliver our legal services since the commencement of the profession.   Sure, we have word processing (although its advent has only ended up costing the clients more, not less), electronic legal research and e-discovery technologies, but do we do things differently than lawyers in the 1800’s?   Not really.

How many lawyers have broken down their business processes to examine, for instance, how a brief is prepared, how an agreement is drafted, how legal research is conducted and preserved, how advice is delivered to a client?    These and other processes lawyers employ every day are intensely manual and grossly inefficient.   There are some companies focused on streamlining these very manual processes through technologies such as Brightleaf’s document automation platform.    There are some law firms, such as Seyfarth, Shaw, who have done this in discrete practice areas.   There are organizations, such as the College of Law Practice Management and thought leaders such as Richard Susskind and Jason Mendelson , who seek to promote such innovation.  But, there is room for so much more.

And if we really want to change the price of poker, don’t we need to look further than simply doing what we have always done better?   Shouldn’t we be reinventing things in a more fundamental way?

Look at the way we resolve complex disputes.  It truly has not changed in hundreds of years (other than getting monstrously more expensive).     Arbitration was thought to be a more efficient way to resolve disputes and, at times it is, but often times it is a cumbersome process that requires legal contortions to discover the facts necessary to resolve the dispute.    What if sophisticated companies who often bump into each other in a legal sense (telecoms, for instance) develop an entirely new, less adversarial way to resolve disputes?   Perhaps they could agree that if a dispute arises they will appoint a single fact finder/decision maker whose fees will be paid jointly and capped.  This person, who would have access to both company’s electronic data, could direct the companies, again with some reasonable caps, as to what documents to collect.   Access to witnesses could also be agreed upon.    This approach could reduce some of the waste generators in our adversary system:  discovery disputes, arguments over privilege waivers,  tit for tat briefs.  In fact, no attorneys need work on this from either side.   The parties would agree in advance that there would be no waiver of attorney client privilege.  Sounds crazy?   Unrealistic?   Maybe.  But it would definitely be better on legal department budgets and my guess is the results wouldn’t be much different than they are today.

This is just one simplistic idea.  I am sure if a bunch of smart in-house attorneys got together to brainstorm on “legal process re-invention”, there would be hundreds of better and more radical ideas.  Any one game?  If so, please email me at baerhug@gmail.com.

Peter Drucker

An ounce of performance is worth pounds of promises.

Mae West

In my years as a general counsel I sat through literally hundreds of pitches by outside counsel.    I have learned what works (at least for me) and what doesn’t.    I will be the first to admit that we corporate clients can be a nightmare when it comes to being pitched for new business.    We are arrogant and utterly insensitive to the time and effort law firms put into such presentations.  And, of course, there is always “RFP-Hell”, where a firm spends countless hours responding to detailed RFPs, all with the nagging feeling that they will never be read (at least with the same care that went into preparing them).    I could devote an entire series to how (and if) to respond to RFP.  For this post, however, I want to focus on one important aspect of effective client pitches: demonstratative commitment.

We found it very helpful, when a significant new lawsuit was filed against our company, to invite in several firms (typically firms with whom we have worked) and occasionally a new firm if the case called for a unique specialty.    We would send the complaint to all of the firms and ask them to meet with us to talk about the case.   We did not use a set of measurement criteria for evaluating these meetings (although we probably should have).  Over time, however, I found that one criterion more than any other distinguished the winners from the also-rans:  commitment.   Commitment was typically demonstrated by firms who:

• Spent significant time spent analyzing the case, as opposed to simply regurgitating the allegations;
• Provided a real (albeit preliminary) assessment; and
• Suggested possible strategies (defenses, counterclaims, third party joinder, etc.).

Typically, firms are hesitant to do any of this.   Understandably, they are not excited about spending time for which they may not get paid.   Moreover, some seem to think that they are more likely to get the work if they imply that they have some great ideas (without imparting them).   Also, lawyers are often afraid to provide assessments or suggestions on strategies at such an early stage (and, particularly, before they are engaged).    The firms that win work are able to get over all of these hurdles.  They realize on a significant matter where they are likely to collect millions in fees, spending $20,000-$30,000 is well worth it.  The winners also understand that clients are not complete ignoramuses and that by providing a preliminary assessment and suggestions the clients understand what “preliminary” means.   Regardless, these in-person presentations can be of great value to clients and, for the firms that approach them in a committed way, for the firms.

Rodin

One of the key benefits of working in-house is the ability to broaden your skills.  In this day and age of increasingly discrete specialties, a corporate law department may be one the last bastions where general legal skills are valued and can be developed.

At Qwest, we thought that one of the perks of working in-house is the ability to develop wholly new expertise.   As a result, a number of years ago we implemented a program where, on an annual basis, we moved between six and eight attorneys from one discipline to another within the law department.    We moved commercial litigators to our regulatory section, regulatory attorneys to our commercial contracts group, etc.     We solicited volunteers for this program, but, at times, we also “encouraged” attorneys to make these moves due to the needs of the department.    We never forced an attorney to make a move that he or she did not want to make and on occasion our requests that a particular attorney move were turned down.

This practice proved to be mutually beneficial to the department and to the attorneys involved.   Virtually every attorney we moved was equally or more successful in their new position.   They developed additional skills, which broadened their expertise and deepened the department’s bench.     We also found that this program served as a valuable recruiting tool.   What law firm is going to allow an 8 or 9 year attorney to pursue a completely new area of practice?   Yet, by offering this within our law department, we were able to provide something the firms could not.  This was one important strategy that allowed us to attract wonderfully talented attorneys and keep them engaged and involved.

What are some of the ways your department develops talent?