A particular shot or way of moving the ball can be a player’s personal signature, but efficiency of performance is what wins the game for the team.
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 firstname.lastname@example.org.
Unless commitment is made, there are only promises and hopes; but no plans.
An ounce of performance is worth pounds of promises.
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.
Nothing is a waste of time if you use the experience wisely.
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?
Make it simple. Make it memorable. Make it inviting to look at. Make it fun to read.
When I was outside counsel, I assisted a large client in managing their litigation while they were searching for a new in-house attorney. As part of the engagement, I went through the files of the previous litigation manager. One of the file labels has stuck with me to this day: “Crap from Outside Lawyers.” In it, were all of the carefully worded, beautifully formatted legal updates and marketing materials from various well-regarded outside counsel. My guess is that those firms had no idea their good work ended in such an ignominious place.
I think it is fair to say that all in-house attorneys have a similar folder; mine is an Outlook folder labeled “Deleted Items.” There has been much written about client updates, some good, some not. Let me give you one in-house attorney’s perspective on what amounts to direct-mail marketing from outside counsel.
If you are trying to update your clients on recent legal decisions, you better be fast. In fact, you better be first. It is fun to watch the updates on an important Supreme Court decision or a new statute appear in my inbox. It reminds me of the Amazing Race television show. There is typically one firm who beats all of the others (hint, its initials are WLRK) and then others dribble in over the next couple of weeks. Now, the ones that are sent later may be more thoughtful, more perceptive, but, unfortunately, few if any in-house counsel are going to bother to read those (you know, limited time, how many updates can you read, etc.).
Which brings me to my second (obvious) point: we all have limited time and are deluged with marketing materials. If you are looking for an effective way of piercing through the marketing fog, I suggest a broadcast email with an untailored, mini-law review article on a new case is probably not going to do it. I had a CEO once who would not read an email that took up more than one computer screen. It’s a good guideline. And, fill the screen with a pithy distillation and a brief explanation as to how the case may be relevant to this particular client and you actually may get someone to read it. Don’t have time? Some of your competitors do. And, with all of the money you are spending on marketing, my guess is that some can be devoted to communicating to your clients in a manner that they will appreciate.
A lot of people have gone further than they thought they could because someone else thought they could.
Since ours is one the oldest professions, I have always believed that mentoring is a key to success. Whatever I have achieved was with the help of great mentors. At each of my legal jobs I had at least one and often several great mentors. For instance, when I was appointed General Counsel in 2002, I had the luxury of being under the wing of our CEO and Chairman, Dick Notebaert, as well as two of his key team members, Barry Allen, then the head of HR, and, Oren Shaffer, the company’s CFO. Between the three of them, they had over a 100 years of leadership experience and without their guidance I would not have succeeded.
My luck with mentors continued even after those three departed the company, as I had the privilege to learn under our next CEO, Ed Mueller, a creative and intuitive leader. He broadened my understanding of the role of a general counsel.
And, early on, I had several other mentors to whom I literally owe my career. Some were lawyers with whom I worked. Some, believe it or not, were clients, and some were colleagues.
I have picked the brains of my mentors on legal issues, management issues, organizational design issues, career development issues, you name it. And, no matter how busy they were, they always took the time to provide wise counsel. Why? Because I asked. Which is the key point to this post: the responsibility for mentorship is as much, if not more, on the mentee, as the mentor. Seek out mentors; it is your career, not theirs.
Speaking of mentors, the Program on the Legal Profession at Harvard Law School is conducting a groundbreaking empirical survey analyzing mentoring practices in the legal profession. Please take their survey, it can help all of us to learn more about effective mentorship in the legal profession and develop a more nuanced perspective than the one I have articulated in this post.
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.
– Louis D Brandeis
Live by publicity, you’ll probably die by publicity.
– Russell Baker
Super Lawyer, Law Dragon, Chambers, the list of the “best lawyers” goes on and on. There is no doubt that these businesses are brilliantly conceived: rank members of arguably the most egotistical profession in the world and then charge those ranked for taking out ads in publications announcing the rankings. Talk about selling ice in hell. But, do in-house lawyers take these rankings into account when making hiring decisions? Once, years ago, long before the “best lawyer” publications became prevalent, we were looking for an attorney with a very unique specialty. I went on the internet and found a lawyer who was ranked one of the top attorneys in that specialty by a magazine written for directors of public companies. Sure enough she turned out to be superb and we continue to work with her today, almost a decade later. But that was the first and last time I ever paid attention to these rankings. There are just so many lists these days and they all contain at least a few selections that are such head-scratchers that I find it hard to take them seriously. Having said that, as a general counsel, I have to admit that I have wondered when one of our outside counsel does not appear on these lists. Is it a sign of a bigger problem? Perhaps they have so alienated their fellow members of the bar, that they only appear on peoples’ s##t lists.
What would be great is if general counsel would be willing to provide data on the amount of fees they paid to attorneys with different specialties over the last 5 years. That way we could really see where the GCs’ wallets voted. This, much more than a half-hearted response to one of the numerous surveys out there, could actually generate data that would help all of us make our buying decisions.
Ben Horowitz has a great post on job titles and start ups. The points he makes are as applicable to big companies as well, although they will probably fall on deaf ears. In my first job out of law school, when a colleague went to the administrative officer to complain about titles, the administrative officer quickly responded by saying: “You can call yourself whatever the [blank] you want, but you are not getting a raise.” That response has always stuck with me. While I agree with the premise of Ben’s partner, Marc Andreessen, that titles matter, in the end, truly extraordinary performers are those who focus on the work, not on their name plate.