Being an expert is often an excuse for not leaving your comfort zone. The Unless You Ask series is directed towards breaking the complacency in the law department/firm dynamic by getting both sides to exit their comfort zone. We are comfortable discussing substantive legal issues relevant to individual matters. But, sometimes, we need uncomfortable, data-driven conversations to address system issues like how legal expertise is leveraged through business process and technology.
Still, the primary value is in the domain expertise. Additional value can come simply from finding alternative avenues to utilize that expertise. Beyond matter-specific legal advice and labor, law firms are a superb resource—often untapped—for all sorts of services that align with a holistic approach to deep supplier relationships.
These value-plus services are a fantastic opportunity for you get more from your external relationships. But they are also a fantastic opportunity for your firms to get to know you and your business. Approached correctly, both sides should benefit from the provision of value-plus services, which include:
- Legal Training (CLE)
- Company Training
- Support Training
- Allied Professionals
- Advice Hotlines
- Pro Bono
Legal Training (CLE)
If we’re being honest, MCLE is frequently a waste of time. Mandatory Continuing Legal Education (MCLE) are credits lawyers in most states need to earn to maintain their license to practice law. Because they need the hours, lawyers sit in rooms playing on their smartphones while someone else drones on about something. Or the lawyers turn on MCLE videos with the sound off so they can focus on real work. MCLE can be a colossal waste. But it does not have to be.
MCLE is intended to address a legitimate problem. Lawyers are so focused on their immediate work that they are unable to carve out time to stay current or think through the downstream effects of the ceaseless changes in our statutory, regulatory, economic, and technological environments. Done right, MCLE can provide real value, especially with a quality speaker addressing relevant topics tailored to the audience. Who better to deliver on that potential than your outside counsel?
The firms’ deep expertise should be a given. Pertinent legal acumen, after all, is the threshold consideration in their retention. Likewise, your firms are paid to become intimately familiar with your specific legal issues. They should know your particulars, priorities, and pain points. They should also have some sense of what your internal lawyers know and what they don’t. Your firms should be well suited to crafting MCLE presentations that are timely, relevant, and useful.
Moreover, because they need to provide MCLE for their own lawyers, firms of a certain size often have the requisite administrative infrastructure. This may include, but is not limited to, arranging and paying for lunch—a free sandwich and cookie remains the most empirically sound method for getting lawyers to show up for anything in the middle of the day. It extends to being an official MCLE Provider—i.e., an entity approved by a state bar to grant MCLE credit for an educational activity—and handling the paperwork to ensure credits are awarded.
Likewise, firms with more than one office are often setup to provide MCLE across multiple jurisdictions and media. If you have lawyers located or barred in different locations, the firm can make sure they get the necessary credits. For some, this may mean watching a live or taped broadcast of the tailored presentation. Alternatively, the firms may have MCLE libraries that their own lawyers can tap on demand. Many firms would be more than happy to provide their clients access to those libraries.
You receive useful, tailored, and convenient MCLE. The firm also benefits. The firm gets face time during which the firm’s lawyers meet a client need by showing off their substantive expertise and explaining why it is relevant to the client. MCLE is an ideal marketing opportunity because it is a true value add.
The training your firms can provide is not limited to CLE or to lawyers. The theory behind CLE is that lawyers should set aside time to learn about topics of import that may not be obvious to them as they rush from urgent project to urgent project. In this, lawyers are not alone.
The law department is rarely the root cause of legal problems. Rather the law department gets called in to clean up or prevent legal problems. There is probably too much of the former and not enough of the latter. Most law department end up overwhelmed with clean up because they lack the resources to do proper prevention. External providers are excellent supplemental resources. And training is essential for implementing most prevention strategies. The external experts who advise the company on compliance, discrimination, harassment, cybersecurity, privacy, litigation holds, etc. are well positioned to assist you in crafting and providing training to the company at large on compliance, discrimination, harassment, cybersecurity, privacy, litigation holds, etc.
Training is something both the law department and the company need. It is something that your external providers can supply at reduced, or no, cost. Training is also something your providers are likely interested in supplying because it increases their visibility and integration. Crafting the training presentation is a prime opportunity for them to gain deep insight into your business in the context of a sanctioned, value-adding activity.
Your external experts are expert in more than just law. A foundational conceit of this volume is that legal acumen should be complemented by business process and technology. It follows that your external providers should have individuals with facility in process and technology. Many of them are allied professionals rather than lawyers. But the lack of JD does not make them any less competent in their area of expertise nor any less of a resource for you to tap.
To take a simple example, many more law firms than law departments have technology training teams. This is more a function of scale—permits specialization—than need. In-house teams, lawyers and staff, are just as technology dependent as their external counterparts. In-house teams can benefit just as much from technology training and can take advantage of the fixed training assets in which the firm has already invested.
Or maybe the firm outsources much of its technology training. The in-house team would need to do the same. Except, in areas of overlap, the combined spend could be leveraged to bring down costs. The firm could choose to absorb more, if not all, of the financial burden as part of their tracked investment in the relationship, as a use of client credits, or as an alternative to sending 46 lbs. of Belgian chocolate as a holiday gift. (Note: Some contributors commented that this last suggestion was dangerous. According to them, any reduction in the chocolate supply would lead first to mutiny and eventually to anarchy.)
Indeed, you should be able to find support from one of your firms in almost any area of internal need. Pricing directors can help you analyze your spend, create budgets, or transition to value fees. Project managers can help you re-engineer your internal processes. Knowledge mangers can help you organize the deluge of internally and externally created information. Information technologists can help you identify new tools that meet your specifications and budget. Et cetera. They can not only do things for you, they can also teach you how to do them yourselves. If you don’t have internal analogues for these allied professionals, you can bring them in for support and training. If you do have internal analogues, then your allied professionals and your providers’ allied professionals should be working together to better integrate the two entities. Multiple points of connection make for much stronger bonds.
Most law departments are perpetually understaffed. Most law departments also go through periods of acute staffing deficiencies due to the confluence of internal (departures, leave) or external (major acquisitions or litigation) events. Your outside providers are well positioned to offer supplemental resources to fill the gaps.
Law firms are often willing to second lawyers at reduced, or even no, cost to their clients. Law firms are genuinely interested in being of service and advancing their clients’ interests. Moreover, law firms recognize that by embedding their lawyers and staff with clients, they can deepen the relationship. There is no substitute for being onsite and working alongside the client. You, too, should want outside lawyers who have insight into your operations.
The source of secondments can vary. For primary firms, regular secondments can be included in the additional benefits portion of a comprehensive, value-focused relationship. For second-tier firms seeking to win more business, secondments can be part of concentrated effort to develop a greater understanding of, and rapport with, the client. For firms trying to establish a new client relationship, secondments can be a high-touch, low-risk opportunity to open a communication channel. For alternative service providers, the insights gained from secondment can serve as the foundation for a managed-services proposal tailored to the client’s actual needs.
Similarly, secondment programs can take many shapes. Secondments can be used intermittently to bolster headcount during periods of sudden need—i.e., because personnel are out or there is a temporary increase in workload. Secondments can be used tactically to address one-off projects and improvement pushes. Secondments can also be ongoing initiatives to cost-effectively expand department resources and strengthen ties with key law firms.
Start wherever you have a need. If you are unclear on your needs, our recommendation would be to start with some targeted secondments on the operations side of the house. That is, bring in secondees for a finite period to achieve a discreet objective that has not been pursued due to resource constraints. Examples of stand-alone improvement initiatives include policy documents, training materials, template upgrades, process mapping, and clean-up from system migrations. Once you have found success in utilizing secondees to complete well-defined improvement projects, you can expand to a more regular rotation of secondees in operational and substantive supporting roles.
Secondment programs can also be integrated with other initiatives. For example, you can pair secondment with the department’s efforts on diversity. You can use secondment to provide young, diverse attorneys from your external firms the opportunity for sustained client contact. You can also have secondees team with externs to give the secondee some management experience while providing the extern a mentor that is not too far removed from law school. The secondment might act as a feeder to employment in your department while the externship serves as a feeder to your primary firms.
For those law departments that prohibit first years from billing to their matters, imagine a secondment-centered alternative. What if instead, junior attorneys were not permitted to bill to your matters unless they had been through a four-week, co-created training program followed by an eight-week, onsite secondment. Or for law departments worried about succession planning for key partners, imagine how much more comfortable you would feel if the succeeding generation included team members that had done multiple rotations in your organization. Secondments are temporary, but the benefits are lasting.
Ultimately, the secondment should improve the welfare of everyone involved. The relationship between the department and the firm should be strengthened. The department should get the supplemental support its needs to pursue its mission at low, or no, cost. The law firm should gain unparalleled insight into the client. The secondee should have an experience that separates her from her peers and prepares her to serve the client for years to come.
Paradoxically, much of the impetus for imposing more structure comes from the need to create the conditions for more freedom. The focus of this volume on ensuring that legal expertise is being properly leveraged through process and technology comes from a place of respect for that expertise. We want our lawyers put to their highest and best use. That, however, requires an operating environment where they are not constantly derailed by necessary-but-low-value-add work. The lawyer, or someone on her team, should be able to generate the basic contract from an automated system or clause bank (knowledge management) and then be able to automatically update the numbering and cross-references when the matter-specific edits are made (tech training) so that the lawyer can devote her finite energy to the unique characteristics of the contract rather than spend time screwing around with the basics.
Structures are not inherently rigid. Flexibility can be deliberately engineered. A great example is the way that law departments and law firms can make informal conversations a formal part of their relationship through an advice hotline. While there is no requirement for a physical Bat Phone, it can be a great benefit to in-house counsel to be able to intermittently pick the brain of their external experts without expending energy on creating an entirely new matter.
An errant thought, idiosyncratic situation, or random question from the business warrants a quick conversation with outside counsel that is not within the scope of any active matter. Without an advice hotline arrangement, there are two ways this can go. Outside counsel can bill for every second. Beyond the annoyance of being nickeled and dimed, the law department has to authorize a new matter, budget, approve timekeepers, etc. Or the outside counsel can forego billing. That is fine until it isn’t—until some inside counsel starts abusing outside counsel’s largesse as a way to avoid their own budget accountability.
An advice hotline is a mechanism to keep score without the pain of creating and budgeting for individual matters. As part of the overall relationship, the firm can agree to provide a set amount of hours of advice—free or at a low, flat fee—beyond the bounds of existing matters. The outside counsel can record their time to a non-billable matter, and the firm can let the client know when the limit nears. At that point, the client can stop calling, setup individual matters, or start paying on a billable miscellaneous advice matter—which is fine as long as it is capped at a de minimus percentage of overall spend. The available hours can be replenished monthly, quarterly, or annually depending on the nature of the relationship.
The benefit of the advice hotline for the requesting internal lawyers is self-evident. Likewise, for the department and the company, the advice hotline makes it likelier that problems are addressed sooner and that serious issues are escalated. External lawyers benefit most directly when the non-matter morphs into an actual matter, and the advice-giving external lawyer sits in pole position to land it. But there is also the more general relationship benefit of being seen, and turned to, as a trusted advisor. Advice hotlines are instances where external experts can really be put to their highest and best use without the intrusion of commercial concerns. Both sides benefit from such exchanges, as does the health of the relationship.
Lawyers are best in supporting roles. While litigation puts lawyers in the spotlight, most instances of litigation are the result of something gone wrong. Good law departments excel at cleaning up business messes. Great law departments also excel at helping the business avoid messes. But operating conditions become more challenging every day. The rate at which cities, counties, states, provinces, territories, countries, and transnational organizations add, change, and reinterpret statutes, regulations, and administrative rules is only surpassed by the inconstancy in politics, economics, and technology. Lawyers are essential to supporting the business in navigating this swirling thicket of risk and uncertainty.
No individual lawyer is supposed to keep up with it all. We have teams and employ outside experts because it is neither feasible nor advisable for any one person to be the repository of all relevant knowledge. Specialization is a hallmark of sophistication. Specialization is responsible for many of the returns on economies of scale. Yet, specialization can also bring diseconomies of scales as critical information becomes siloed. As communications overhead increases, we have to come up with more formal methods for ensuring that critical knowledge is shared. Managers are not just supervisors, they are channel intermediaries that are supposed to facilitate communication among organizational units. But bureaucratic layering is not the sole mechanism for addressing information silos.
We hire outside counsel because they know things. They know things that are vital to our business interests. How do we make sure that critical knowledge is transmitted from outside to inside counsel? In the context of active matters, the responsibility should be self-evident. Outside of active matters, CLE is an excellent opportunity to explain and contextualize key developments. But CLE does not occur at the speed of modern business. An advice hotline fills the gap by permitting inside counsel to gain immediate access to external expertise on questions that arise outside the scope of active matters. But advice hotlines only answer questions that inside counsel know to ask. There are many instances where outside counsel should be providing updates to prompt conversations that would otherwise occur too late.
Updates can come at different intervals and take different forms. They can be weekly, monthly, or quarterly. Or updates can be delivered as alerts that go out whenever a major change is afoot. The most basic form is “X happened.” Rarely, however, are the implications of X self-explanatory. So most updates should be accompanied by “X happened and the general implications are Y…” Often, this is enough. But the updates may prove more useful if the analysis is focused on a particular sector, as in, “That X happened should lead widget manufacturers to consider Y because…” And in the context of on-going relationships, the updates can be more tailored to focus on your business, “That X happened has Y broader implications in the market but could really impact your Z initiative because…”
Useful updates are strongly biased toward quality over quantity. The same limitations on attention that make it impossible for any individual to keep up with all the news apply equally to keeping up with all the potential updates about the news. An interesting aspect of keeping score for the purposes of regular performance reviews is seeing the different value internal and external counsel place on the updates that external counsel provides.
Your preferred providers should have a list, or lists, of internal personnel to whom they send regular updates and irregular alerts within their area of domain expertise. But updates are also an excellent low-risk, low-touch way to screen potential providers. If your potential firm is sending you more pertinent information and cogent analysis than your incumbent firm, there are questions to be asked to as whose expertise you should be investing in.
It is easy to imagine a scenario where a free alert is by far those most valuable service a firm renders in a given year. But it is equally easy to imagine a timely alert resulting in work for the firm. Even without a direct connection to new work, updates and alerts strengthen the client/firm relationship and keep the firm top of mind. As always, providing great value to the client is the best marketing.
Value is subjective. A traditional operating definition of value is “what the customer is willing to pay for.” Unless You Ask is presented as a menu directed towards enabling structured dialogue between clients and their preferred providers because of the need to reach a mutual understanding of what the client is willing to pay for. Value, however, is dependent on values. Thus, while we still encourage keeping score, the concept of value can extend beyond measurable economic benefit. Law departments and law firms alike participate in pro bono legal services and other charitable endeavors because it aligns with their values. There are relationship benefits from working together on worthy causes even though no money changes hands.
While doing good is the primary goal, it is possible to build a pro bono program that has ancillary benefits. Pro bono provides an excellent opportunity for internal and external counsel to work together and build personal rapport outside the hierarchy of their standard exchanges. The client and their firm(s) can simply choose a cause and have their lawyers roll up their sleeves as a team to assist those in need. Good is done. Relationships are built. And that should be, and often is, enough.
But if the client and the firm are really going to co-invest in a long-term commitment to pro bono, it is also a chance to collaborate on system design and integration. While there is absolutely no question that lack of resources—money and lawyer hours—is the primary problem facing most non-profits, there are limits to the amount of money and time that can be indiscriminately thrown at an issue. As with everywhere else in legal, expertise should be leveraged through process and technology. On top of their commitment to putting boots on the ground, law departments and law firms can work together to bolster the institutional infrastructure of the outfits they support.
Pro bono then becomes not just an opportunity for internal and external lawyers to build rapport but also an occasion for their respective allied professionals to coordinate and contribute to a communal goal. Just as the lawyers can be deployed to help on the lawyering, allied professionals can assist on project management, knowledge management, document automation, etc. They can introduce processes and technology that amplify the work being done by their lawyer colleagues and all the other lawyers contributing time to the organization. They have roles to play as part of a multidisciplinary team seeking to deliver interdisciplinary solutions to real legal problems.
This additional emphasis on making a systemic impact also recommends bringing vendors into the fold. Legal technology vendors share the altruistic impulse. And, like a law firm, they are loath to pass up an opportunity to build a relationship with a client. A pro bono project can be a great opportunity to conduct a trial run of a new technology. At worst, it doesn’t work, and the status quo continues. At best, the non-profit gets something of value, and the law department/firm team discovers a new tool that makes them ask, “Why aren’t we using this?”
Do pro bono because it is the right thing. Contribute money and lawyer hours because those are sorely needed. But recognize the opportunity for ancillary benefits from team building, relationship strengthening, and experimentation.
This article is a serialized from Version 1.0 of the complete Unless You Ask playbook, which is available for download here. It is a project of the ACC Legal Ops External Resource Management Interest Group.
Casey Flaherty is the founder of the legal tech consultancy Procertas. Mr. Flaherty is a former inside and outside counsel and is the creator of the Service Delivery Review, a strategic-sourcing methodology focused on how well law firms utilize process and technology to deliver legal services. Mr. Flaherty consults, writes, and speaks on strategic sourcing, legal operations, technology, process improvement, and metrics. Due to his efforts to create and promote a more rigorous, empirically-oriented approach to quality and spend management, he has been, inter alia, featured in The Washington Post, named an ABA Legal Rebel, and selected as one of the Fastcase 50. Mr. Flaherty also serves on the advisory board of NextLaw Labs.
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