Law firms are usually required to translate abstract legal insights into concrete deliverables like contracts and motions. The value is in the insight. But much of the labor—and the cost and the waste—is bound up in the translation. A law firm that excels at legal insights does not necessarily excel at legal service delivery.
Clients should be concerned with legal service delivery because it affects outcomes—quality, cost, and speed—especially over the long term. Clients should talk to their firms about legal service delivery because firms are highly responsive to client priorities. Clients are the urgency driver.
Everyone suffers from urgency bias, the preferencing of the immediate over the important. But the temperament of lawyers and the structure of law firms are particularly focused on the present—this project, this matter, this month, this year. Clients can exacerbate this tendency by only discussing the now—this motion, this contract, this rate, this invoice. Or clients can counterbalance short termism by insisting that some attention be paid to the long term. What clients cannot do is abdicate their role. Silence will be taken as assent to the status quo.
Clients are not satisfied with the status quo. Surveys indicate widespread dissatisfaction. Attempts to find the root cause of that dissatisfaction uncover that, overall, clients remain content with the expertise of their external lawyers. It is the lack of innovation and the attendant cost of service delivery that is the source of client frustration. Clients have tried to address this frustration mostly through talking to firms about costs, primarily in the form of discounts. This approach has not sufficiently modified behavior. With people and pricing in place, process offers the most levers to drive continuous improvement. Addressing process requires actually addressing process.
Very few clients engage in dialogue with their firms about how legal services are delivered. Even fewer try to deliberately weave continuous improvement into the fabric of the relationship. The legal market will be healthier if this changes.
For more on the reasoning behind value enablement, see the Why section.
Step 1: Questions
To improve legal service delivery, law firms should be doing more to leverage their legal expertise through process and technology. The problem is that while clients are relatively comfortable assessing legal expertise, we lack the tools to assess the quality and utilization of the systems supporting that expertise, like project management, knowledge management, staffing, and analytics. Except we don’t. The tools for vetting legal expertise and value-enabling process/technology are fundamentally the same: ask good questions as a prelude to good conversations. When it comes to process and technology, we are simply not accustomed to inquiring and discussing.
The lawyer-selection process is instructive. It is far from an exact science. We use quantitative proxies where available—years practicing, similar cases/deals handled, appearances before a particular court. We rely on interviews to get a better sense of candidates. When we can, we speak to peers with personal experience working with the lawyer. And then when we find a lawyer we like, we stick with her not only because the vetting process is inexact but because there are genuine advantages to incumbency. We now have a track record. And a lawyer becomes more effective as she becomes acclimated to our priorities, protocols, personalities, and pain points.
Vetting value enablement—i.e., looking at the process and technology that support legal expertise—is similar. We use standard questions and quantitative proxies as the foundation for constructive conversations. And if the relationship progresses properly, our law firms improve over time. That the vetting process is inexact does not make it any less useful.
Before moving on, however, we should pause and repeat advice that kicked off this volume:
You should be asking your external providers to get demonstrably better. Stripped to its most basic, you should always be able to identify how your primary providers are measurably improving their delivery of legal services to you. You should have credible evidence—descriptions and metrics—of their process improvements and innovation.
While this compilation will go deep into potential methodologies for starting and structuring such conversations, do not get distracted by the details or paralyzed by a compulsion to develop a comprehensive approach. If you can’t answer the question, “What evidence do we have that our primary providers are measurably improving their delivery of legal services to us?” ask them for some. Then ask again in six months. Repeat.
If nothing else, have your primary firms respond to the basic request, “Please provide some evidence that you are measurably improving the delivery of legal services to us.” Then talk to them about what they submit. Then schedule a time to revisit and discuss the progress made. Quarterly business reviews, annual performance reviews, or the annual rite of firms submitting rate-increase requests are all good opportunities to introduce and follow-up on such issues.
If you want to offer more guidance, you can use this volume not only as resource but also as a reference, “We are interested in engaging in structured dialogue about where and how you are improving the delivery of legal services to us. Following the Unless You Ask playbook from the ACC Legal Ops Section, please provide us by [DATE] with an overview and metrics of how you have recently improved and are currently improving the way you leverage legal expertise through process and technology.”
Likewise, you can use the availability of this volume to get more specific without getting more detailed by selecting categories and placing parameters around what is submitted, “We are interested in engaging in structured dialogue about where and how you are improving the delivery of legal services to us. Following the Unless You Ask playbook from the ACC Legal Ops Section, please provide us by [DATE] a primer—one page each with supporting metrics and documentation—on your staffing, project management, and use of data/analytics.”
Or you can send them a request-for-information (RFI) type questionnaire. The Appendix collects all the questions from each category presented in this volume. Like the categories themselves, the questions are a menu—you do not need to use them all. The questions are also generic. You can, and often should, tailor your questions to the types of matters being handled by the subject firm(s). Because the categories are porous and only offered for organizational coherence, the questions overlap in some instances. Finally, the questions are deliberately repetitive—they are consistent in form from one category to the next.
The categories contained in this volume are not exhaustive. Below is a list of model questions that can be modified to assist you in crafting inquiries for whatever category you devise. The questions are driven by a few interlocking considerations that are intended to get past puffery. This is not advertising copy. You are after concrete answers tied to measurable improvements in legal service delivery to you.
Puffery. Every firms seems to be full of seasoned, client-centric experts dedicated to delivering superior results, incredible value, and unparalleled client service via process-driven, team-oriented, cross-functional collaboration that results in efficacy, efficiency, and client satisfaction. And they’ve got the awards to prove it. That’s great. But it offers little informational value. Lawyers are dexterous with words but evidence speaks louder.
Concrete. The firm needs to tell you what they are doing. It is even better if they show you. Descriptions of processes and technology can be supplemented with process maps, reports, and screen shots. In many instances, the firm should be able to point to actual work they’ve done for you and how the process/technology played a role.
Measurable. Not everything that can be measured is meaningful. Not everything that is meaningful can be measured. But even where the improvements are more qualitative than quantitative, you can usually use proxies to provide a generally accurate, if not precise, picture that service delivery has improved. At the very least, usage statistics can reveal whether the initiative is real or vaporware. In short, the firm should be able to define success and identify indicators thereof.
Legal Service Delivery. Firms do spend money on technology upgrades. But the value to you of their investment in docking stations for their open-office plan or the new video system for their conference rooms are not self-evident. The burden is on the firm to link the investment to your legal outcomes, speed, and cost.
To You. Firms do innovate. But the innovations do not always scale. The firm may have invested in a new platform your lawyers don’t use or innovated in an area that has no impact on your work. 18 Copyright © 2016 Association of Corporate Counsel, All rights reserved.
Some generic, exemplar questions:
- Define [X] from the firm’s perspective.
- Detail firm’s [X] practices and platforms that affect the work firm handles for client.
- Explain how firm’s [X] practices fit into the workflow of the attorneys handling client’s matters.
- Summarize the respective role of attorneys and allied professionals (i.e., staff) in both utilizing and updating firm’s [X] systems.
- Provide any available, applicable process maps that cover firm’s [X] practices or that indicate how [X] plays a role in firm delivering legal services to client.
- Identify recent documents (or parts of recent documents) firm sent to, or filed on behalf of, client that have their genesis in the firm’s [X] practices.
- Specify how much and to whom firm awards billable credit for [X] activities.
- Report whatever statistics are available with respect to firm’s applicable [X] practices:
- Volume of material contained in [X] platforms:
- Frequency/volume of access to [X] platforms
- Percentage of lawyers/staff who access [X] platforms
- Frequency/volume of updates to [X] platforms
- Percentage of lawyers/staff who update [X] platforms
- Average time per lawyer recorded for [X] activities
- Any other useful, available statistics re [X] activities
Additional questions to consider include:
- Outline [X] projects you are currently working on (with timeline of start and finish) and projects you have completed in the last three years that improve the firm’s delivery of legal services to client. For completed projects, provide whatever measurements are available on usage and improvement. For current projects, explain what measurements will be available on usage and improvement. Specify what success looks like and what its indicators will be.
- Describe [X] projects that firm has done for other clients that could be used as models for a [X] project that would improve firm’s delivery of legal services to client.
- Include any additional information that you consider important/useful for client to have in order to understand how [X] is integrated into firm’s delivery of legal services to clients.
These types of questions can be used in conjunction with an RFP or convergence initiative to vet new providers or consolidate existing providers. These types of questions can also be incorporated into an existing structured dialogue, such as a QBR, annual performance review, or annual rate review. These types of questions can also stand on their own—i.e., a new law department initiative to prompt and sustain conversations with external providers.
Step 2: Interviews
In some cases, questions and answers will be sufficient to get a proper dialogue going. For your primary providers, however, we recommend an intermediate step: an interview.
Just as you would interview outside counsel to get sense of their legal expertise and philosophical approach, you can interview them and their team to get a sense of how they augment that expertise and implement that philosophy with process and technology. Interviews can be conducted remotely (e.g., screenshare), in person (e.g., when they come to your office), or onsite. Time permitting, you should interview a few attorneys actually doing your work—i.e., the ones recording the most hours on your matters—as well as the firm’s subject matter experts in the area of emphasis like billing hygiene, project management, etc.
The answers to the questions already asked and answered serve as your foundation. You will therefore have the information necessary to conduct a targeted interview with your front-line attorneys, such as, “The firm states it uses X platform, please show it to me, tell me how and how often you use it, and provide some examples where you have used it on our matters.” Once you have gone through the specifics, you can also be broad. Ask them where, when, and how frequently the process improvement plays a role in the work they do for you. Ask them not only how valuable specific process improvements are but also how valuable they could be. Towards that latter point, ask them about potential process improvement that would augment their handling of your matters.
Then ask the same questions of whomever the firm has put in charge of the area—e.g., a CIO, COO, CKO, Director of Client Value, Pricing Director, or Innovation Partner. There are likely people at the firm, especially the leads in specific categories, bursting with ideas that the firm has not given them the resources to implement. The distance between their ideas and the firm realities is a good data point for trying to understand where the firm stands. This knowing-doing gap will also help identify potential next steps in the subsequent phase of the process (i.e., structured dialogue).
No firm will be perfect. But you are likely to find a high degree of variance with a depressingly large percentage of firms clustered on the poor end of the spectrum in many categories. That variance will not just be interfirm, it will be intrafirm.
The idea that sizeable law firms do not innovate is not quite accurate. There is a fair amount of innovation across the legal spectrum, including in BigLaw. Rather, the larger the firm, the harder the time they have scaling innovations. You might have one practice group that is genuinely offering an innovative delivery model. But this fact has almost zero informational value if you are considering giving work to a separate practice group. The inconsistency from practice group to practice group, and even from lawyer to lawyer, is one reason interviews of primary providers can prove so important. You really should understand how your lawyers are handling your work.
In addition, the difference between a firm or practice group that excels at service delivery and one that does not will not necessarily be reflected by dollars invested in advanced technology.
There are vast graveyards of expensive tools that were purchased but never rendered effective because of the lack of complementary investment in time, training, and process redesign. Conversely, a group of dedicated legal professionals can substantially improve their service delivery with some time, attention, and sticky notes followed by the commitment and discipline to actually modify behavior.
If you find that your firm excels in a certain category, fantastic. You have other categories to talk to them about. Plus, you have a benchmark against which to compare your other firms. If, like most firms, they are behind, don’t despair. The interview is only the first conversation.
Step 3: Structured Dialogue
If your external lawyers are bad at lawyering, get new lawyers. If your external lawyers are bad at process and technology, give them an opportunity to improve. Don’t demand great answers the first time you ask about project management, knowledge management, analytics, etc. Demand better answers the second time you ask. Don’t demand that they fix everything immediately. Demand, however, that they always be improving at something. Don’t underestimate the aggregate impact of marginal gains.
When you have identified deficiencies, set priorities and work together on one or two well-defined projects every six months. Establish milestones and embed metrics in the improvement initiative. Do after-action reviews asking how much improvement the investment yielded and what lessons are to be learned. Apply those lessons to the next project, or the next phase of the same project. Repeat. After a few years, the firm will have made substantial upgrades in delivering legal services to you, and you will have woven continuous improvement into the fabric of the relationship.
While you will likely have ideas about how services should be delivered—especially because you will be benchmarking your primary providers against each other—you should still ask your firms to propose improvement initiatives, as well as timelines and the metrics by which those initiatives should be judged. There is a huge amount of latent potential for innovation inside law firms, including allied professionals, young lawyers, and under-resourced team leads.
Most initiatives will not fit neatly into one category or another. Such overlap is expected. Category boundaries are porous and used only for organizational convenience. Knowledge management, project management, etc. are not ends in themselves. But they are means worthy of attention.
They are also specialties. Modern legal services is a team sport. Expecting your law firms to deliver legal services in an interdisciplinary manner—i.e., legal expertise augmented by process and technology—often demands multidisciplinary teams. The allied professionals in charge of areas like knowledge and project management are essential stakeholders who have much to contribute to structured dialogue on improved service delivery. They should be in the room and part of the conversation. You don’t need the relationship partner repeatedly reminding you that the firm has really, really good lawyers who work extraordinarily hard and care deeply. Of course they do, or they wouldn’t be your firm. You still need the people close to, and with expertise in, the labor-intensive portions of the work to provide insight as to how it can be done better.
These data-driven conversations should be a true dialogue with a 360-degree perspective. That means that you should be open to suggestions about improvements and innovations of your own. Maybe one reason that outside counsel is slow to turn around particular types of documents is that you are slow to get them the internal company reports on which those documents rely. Maybe one reason that outside counsel appears to have poor billing hygiene is that while you are quick to initiate matters via email, you are less expedient in opening new matters for them to bill against. Maybe the law firm approaching your work the way it does is an unintended consequence of your billing guidelines.
There should be something in it for exceptional firms. Their commitment to the relationship should be rewarded with more work or more profit (e.g., higher realizations) on existing work. There is so much slack in the legal market—time that is not recorded, preemptively reduced by the law firm, or cut by clients—that there is ample room to simultaneously improve quality, reduce costs, and increase profitability. This is not a zero-sum game. The most sustainable outcomes are win-win.
In the next issue, we are going to run through the 3 steps in the following categories:
- Knowledge Management
- Process and Project Management
- Paper Intensity
- Expert Systems
- Technology Training
- Firm-Defined Categories
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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