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In Search of Perfect Client Service

Why lawyers don't seem to get it

Think twice before asking for “any and all” documents

Posted in Client Service, Commentary, General

Before I get to the topic at hand, allow me a brief rant.  Can anyone explain how the phrase “any and all documents” (typically used in Rule 34 request for documents) covers any document not covered by a a request for “all documents” or “any document”? This is as bad as “true and correct copies.”  Lawyers really need to take a look at what they write.

Rather than bore you with data on the amount of new information created each year by each business, let’s just agree that it is a lot.  When you frame a document request as “any all all documents (which includes ESI) related to blah, blah, blah,” you need to think long and hard about whether you really want “any and all” such information.  Aside from the ambiguity inherent in such requests, lawyers tend to ask these questions without regard to the importance of the issue, the need for documents to prove the point involved or whether it is possible to ask for a smaller subset of the universe of documents to get what is needed.  Why are these things important?

One of two things happen when you get documents in response to your request.  You either review them or you don’t.  If you ask for these documents and do not review them,  you are a blithering idiot. If you review the documents, or even just a subset of them, you are incurring significant cost for your client.  Do you really want to incur that cost without first determining it is important?

Lawyers seem to follow a script reminiscent of the code written for V’ger in the original Star Trek movie–”learn all that is learnable.”  Just like V’ger almost destroyed the earth in pursuit of its directive, lawyers can seriously injure their own client by mindless pursuit of “any and all”.

It is time to take a fresh look at this practice and come up with a better approach.

Kudos to Jeff Carr

Posted in People, Places and Blawgs

Regular readers know that Jeff Carr, the General Counsel of FMC Technologies, is my mentor, my client and my friend.  Our relationship evolved in that order.  I am very proud of each of these steps in the growth of our personal relationship–anytime you can develop a strong friendship with someone who is smart, ethical, funny, comfortable challenging orthodoxy when needed and an all around great guy, you have to count yourself fortunate.  Jeff announced yesterday that he is retiring from his position as General Counsel of FMC Technologies as of August 1.

Jeff’s relationship with management is strong and they did not seek his departure. He is in good health. His family is terrific.  It’s just a good time in life to take some time to travel, relax and think about the future.  And he is in the position to do these things.  Not everyone is, and I know he feels blessed to be in that position and is looking forward to the future with a sense of excitement.

Those who know Jeff best know that he is not a guy preoccupied with the rear-view mirror. He lives looking forward.  I don’t know what “the next phase” will be.  I don’t believe Jeff does either.  Perhaps he gave a hint of where he might go in a recent interview in Forbes:

Parnell: If you were to leave FMC Technologies today, what would you do?

Carr: I’d go to the beach with my wife and we’d relax and travel.  Then, I’d write my book about how to run a high performance legal team, and I’d focus on my other passions: racing cars and jazz piano.  But I’d probably get bored and want to get back in the game—perhaps not in another GC role, but from a completely different platform.  I would ask each CEO I could meet to “Tell me what your legal spend has been for the last 5 years.”  I’d then look them straight in the eye and say, “I will do all of your legal work for you at 80% of what your average spend has been. And of that 80%, you only pay me 80%, and then you give me a report card on performance and link that to payment of 0-200% of the hold back.  With that upside/downside approach, ultimately I will make 80-120% of what I bill you. In your worst case scenario, you will pay me exactly what you have been paying on average for the last five years. But you would only do that if you were absolutely delighted.”

How can I do that? I am absolutely convinced that there is enough inefficiency in the way that [companies are] currently providing or accessing the legal system that we can eliminate that. And over time, we can drive year over year performance gains by focusing on prevention as opposed to focusing on reaction.

Having worked so closely with Jeff over the years, I am confident that such a business endeavor would be hugely successful.  But perhaps while sitting on a beach somewhere in the world listening to Jimmy Buffet, Jeff might be inspired in some other way.  Whatever “the next phase” might be, I know it will be both successful and a challenge to the orthodoxy of the legal system.

It has been a great honor to be one of Jeff’s lawyers, and an even greater one to become his friend.  I look forward to continuing our discussions about challenging the profession to be better than it is, and challenging law departments to do more as well.  Congratulations on a job well done, my friend.  Relax, enjoy the world.  And when Marie finally can’t take you being home so much, let’s find something fun to do!

Focus on “shadow hours” misses the point of AFAs

Posted in Hourly Rates and Alternatives

Aric Press of American Lawyer penned a terrific article, What the Rise of Pricing Officers Says About Big Law’s Future.  The article, reflecting the results of a recent survey, offers some great insights into the move to non-hourly billing at the largest law firms.  One result was disappointing, though not surprising:

Value is harder. We don’t have a definition. We barely have a concept. And we surely don’t have the essential building block: trust. As part of the survey, we asked pricing officers whether clients insisted on “tracking shadow hours” performed by firms so they could be certain they weren’t getting the short end of the deal. Only 13 percent responded, “Not usually.” And none answered, “Never.”

The problem with shadow hours is that they are used to judge “value” by comparison to what the client would have paid if billing had been based on an hourly basis.  One of the primary purposes of alternative fees, however, is to eliminate time as a measure of value provided. If clients insist on continuing this measure, they will miss the true value of alternative fees provide.
I write more about shadow billing in my soon-to-be-published book, Alternative Fees for Litigation Lawyers and their Clients.

The Three P’s Shortchanges What’s Necessary to Bring Value To Clients

Posted in Commentary, Hourly Rates and Alternatives

I ran across an interesting article in Attorney at Work, Trends in Legal Pricing and Project Management. The article reported on the recent P3 Conference offered by the Legal Marketing Association.  The three P’s are pricing, project Management and process improvement.  Having just written a book that covers these topics (and more), I was interested to hear the latest.  Unfortunately, it seems like so much pablum.  Of course, my reactions below are based solely on this article and there may well have been much more to the Conference.

The basic idea, that pricing is about more than just the price offered but must include tools to bring value to the price offered, is one I have written about many times.  Unfortunately, the focus on project management and process improvement ignores the critical role other tools play in creating value.  My forthcoming book, for example, contains chapters on early case assessment, decision trees, disaggregation, managing risk and after action assessments.  Each of these tools, particularly managing risk, is critical to obtaining value.  To illustrate, if a client is unwilling to accept a modest amount of increased risk, it is hard to create significant value because the same old run-down-every-rabbit-hole approach will be a huge driver of high cost service.

But the points there were covered were much more “glass half empty” than “half full.” The author, Steve Nelson, reports that “law firm teams in pricing and project management are growing quickly.”  There are now 16 non-practicing pricing and project management professionals at Reed Smith and a whopping 12 at Mayer Brown.   At this pace, the firms will have the staffs they really need by the start of the 22nd century.  These numbers, to me, show that the firms are playing at the periphery and doing little more than paying lip service to the importance project management and process improvement play in generating value. If you take the “some is better than none” view of things, than sure, these numbers show an improvement.  But that bar is set so low that it will be hard not to trip over it.

The next point is that “there is a growing focus on budgets.” Really?  That has only been an issue since the early 1990s.  That is immediately followed by the point that “clients are bulking up too.”  Again, this is not news.  Maybe some clients are late to the party, but there was this thing called The Great Recession that caused many clients to focus on this issue years ago.

The next point, “beyond spreadsheets” is about the role of technology in pricing.  Technology that utilizes the prior billable hour work doesn’t really bring much value to the table other than setting a bogey that firms should be able to beat for similar work.  And beat significantly—think on the order of 20-30%.  I am not aware of many firms who are using technology for pricing that provides real value to their clients.

The last point, “proving ground for tomorrow’s law firm leaders,” is an important one, but only because it provides career-path guidance to young attorneys.  I am not sure I agree with Toby Brown’s statement that future COOs could come from those handling practice innovation.  Toby is a highly accomplished and very rare pricing and practice specialist.  He likely is destined for high levels of firm management, but firms need to reach the point Akin has in embracing the ideas of value pricing.  Few have.

It sounds as if the P3 Conference was a “just scratch the surface” event.  At least the article suggests such was the case.  Even if not, the perception that creating pricing value is easily accomplished does a huge disservice to the endeavor. The challenges firms face to providing better pricing are core to their business model and require changes to firm DNA.  Few are willing to expend the energy to truly accomplish the objective.

Life without email? Maybe.

Posted in Commentary

Fascinating article in today’s Wall Street Journal, A Company Without Email? Not So Fast.  The article features companies that have tried to do their work without email and addresses how hard it has been to accomplish that goal.  But what really got my attention was this:

Email usage is “exploding,” said Gloria Mark, a professor at the University of California, Irvine, who has studied how workers interact with the technology. Not only are workers wading through ever more clogged in-boxes, they’re also checking frequently, an average of 74 times a day, according to coming research from Prof. Mark.

Seventy-four times a day?  Wow.  That seems like an enormous waste, not just from the inefficiency of the disruption itself, but also from the time needed to get back on task at the same point as before the interruption.

And it seems so unnecessary. Think about this from the standpoint of the litigation world.  Someone sends an email about a case. Is it time sensitive?  Probably not, meaning the disruption at that moment is a subtraction from value, not a value add.  What if non-critical emails went instead to a discussion forum about the case, where you could review all of the updates (they aren’t emails anymore) at a given time, when it is convenient for you instead of at the whim of the sender?  I believe this kind of discussion forum approach would be a hugely positive thing from a quality and efficiency standpoint.

Is there more?  Seems like it.

A 2012 study from Prof. Mark and several colleagues found that workers who were cut off from their email focused for longer periods of time, switching screens less frequently, and were less stressed, as measured by heart-rate monitors.

I have said before that I think email has a limited shelf-life.  My teenage kids simply ignore emial.  If it isn’t part of their world, the odds are that the world will change to their way of thinking, perhaps only eventually.  Eventually, but certainly.

If anyone has any products or ideas to share to help businesses move away from email, please share them.

Declining number of lawyers in NYC. Where is work going?

Posted in Commentary, General

The New York Law Journal reports that the number of lawyers in the top 100 firms in New York City has declined yet again.

The number of attorneys employed full time by the largest private law offices in New York continues to decline, a trend that began with the 2008 financial crisis, according to data gathered for the New York Law Journal’s annual NYLJ 100 survey. Hiring is up, however, among regional and out-of-state firms….

Among these 100 law offices, 53 saw a net loss of New York attorneys from 2012 to 2013; two saw no change and 43 had a net gain. (Year-to-year changes in two firms’ head count could not be calculated due to mergers.)
The amount of work clients need to have performed certainly has not declined in total since 2008.  Does this mean work is going elsewhere?  That firms are becoming significantly more efficient in how they handle work?  Both?  Neither?
I would love to see data on this point, but my guess is that work is being moved to lower cost providers and some measure of the work is being handled by LPOs.  Just a hunch.

Words of Client Service Wisdom from Mad Men’s Don Draper

Posted in Client Service

I ran across an infographic in Inc. that captured my attention—16 Brilliant Marketing Quotes from Don Draper.  As a fan of the show, how could I not read the quotes? As I read them, I couldn’t help wonder if the lines from the show were also written for lawyers. Some seem to be.  Others, not so much.

“The day you sign a client is the day you start losing one.”

You certainly need this mindset if you are going to create a long-term client relationship.  If nothing else, fear of losing a client should cause you to be certain your service quality and work quality are the very best you can offer.  Fear of loss can be a powerful motivator.

Our worst fears lie in anticipation.

The antidote to anticipation is execution.

Even though success is a reality, its effects are temporary.

And this is as it should be.  As a service provider, the focus has to be on tomorrow.  We have a sign posted in our office that says “If we haven’t exceeded our client’s wildest dreams today, someone else will tomorrow.”  Businesses look forward.  We need to as well.

If you don’t like what’s being said, change the conversation.

In some respects, this is the essence of the New Normal.  The conversation created by OldLaw is now supplemented by the New Normal, referred to by Mike Ayotte as “BetterLaw” and “NewLaw”.

Advertising is based on one thing, happiness.  And you know what happiness is? Happiness is the smell of a new car. It is freedom from fear. It’s a billboard on the side of the road that screams reassurance that you are doing is okay. You are okay.

Happiness. Freedom from fear. Reassurance.  These words scream client service.  They are not the only words that do so, but they are on the right track.

It’s your life. You don’t know how long it’s gonna last, but you know it doesn’t end well. You’ve gotta move forward as soon as you can figure out what that means.”

In his famous address to a Stanford graduating class, Steve Jobs said much the same thing. “Your time is limited, so don’t waste it living some else’s life. Don’t be trapped by dogma—which is living with the results of other people’s thinking. Don’t let the noise of others’ opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition. They somehow already know what you truly want to become. Everything else is secondary.”

I hate to break it to you, but there is no big lie, there is no system, the universe is indifferent.

If you meet a client’s real need, you can succeed.

We’re gonna sit at our desks typing while the walls fall down around us. Because we’re the least important, most important thing there is.

People want to be told what to do so badly that they’ll listen to anyone.

You are the product. You feeling something. That’s what sells. Not them. Not sex.  They can’t do what we do, and they hate us for it.

What you call love was invented by guys like me…to sell nylons.

It wasn’t a lie, it was ineptitude with insufficient cover.

Everybody else’s tobacco is poisonous. Lucky Strikes’ … is toasted.

These six really add nothing to the New Normal, BetterLaw dialog. They reflect enormous cynicism, and that is an anathema to the New Normal.

But what is happiness, it’s a moment before you need more happiness.

The same is true for providing client satisfaction.  You cannot be static in a changing world.

Change is neither good or bad, it simply is.

Amen, Don. People who resist will lose out, some sooner, some later, but those who resist will lose.  This is a truth proven through the history of human-kind. Those who embrace change can ride the wave.

And lastly….

Nostalgia: it’s delicate, but potent….In Greek, nostaligia literally means the pain from an old wound. It’s a twinge in your heart far more powerful than memory alone.

This factor explains why change is hard, why it takes not just great effort, but great effort over an extended period of time.  It is the difference between running a mile and running a marathon.

Ten ideas for better depositions

Posted in Commentary, General

 

I recently became involved in a case where all the depositions had already been taken.  The opposing lawyers were partners in a very large, very well-known law firm.  And my predecessors on the case came from a firm with a recognizable name.  The case was pending in Federal Court, so the depositions were all limited to 7 hours.  While reviewing the depositions for use at trial, I marveled at the amount of time spent on things that were of no interest to the trial as well as some other quirks that struck me as pointless.  So I started keeping a list, which I shared with my partner, Mark Sayre.  Mark added a few of his own pet peeves, and together we created this list of 10 “Don’t Do These Things At Depositions.”

  1. The instruction “if you answer my question, I will presume you understand it,” is absurd and pointless.  Think about it in this light—have you ever heard anyone say that before examining a witness in a trial?  No?  There’s a reason. No one cares what the examiner presumes.  Really.  No one.
  2. Objecting based on “assumes facts not in evidence” is really silly.  Depositions occur during the discovery phase of a case when nothing is in evidence.  Silly objections like this are why objections except as to form are not required to be made in a deposition.
  3. Objecting “lack of foundation” to foundational questions reveals ignorance about the nature of questions.  “Did you call Mary Smith?” is a foundational question.  A foundation question is one that assumes a fact—“what happened at the meeting?” assumes both that a meeting occurred and that the witness attended it.
  4. Objecting to “lack of time frame” when the word “ever” is used or implied reflects a hearing problem (get it checked) or a failure to listen.  “Ever” is a time frame that no lawyer should need to have explained.  It means from the dawn of history until the moment of the question.
  5.  The objection “hearsay” doesn’t matter in a deposition.  It’s called d-i-s-c-o-v-e-r-y.
  6. “Move to strike the answer as non-responsive” is just a time waster.  There is no judge to rule on the motion and saying neither preserves it nor puts it into a queue for decision.
  7. Questioners who spend time asking about educational background and job history generally are wasting time, particularly when the witness is a fact witness and the facts are not about the ability of the witness to do what he or she did.
  8. Depositions are not memory tests. That said, asking questions like “do you remember what you said earlier in this deposition?” should invite “no” as a response. A well-prepared witness can say “not precisely—can I have my prior statement read back to me?”  It wastes the examiner’s time.
  9. Pronouns and adjectives rarely enhance the clarity of any communication. Yet they seem to be the norm in depositions. 
  10. Failing to establish the necessary foundation to admit documents.  If you want to be able to use a document at trial, remove any doubt about its admissibility by asking the right questions.

 There, I’ve stopped at ten.  There are always more  “lessons to be learned” but I’ll stop here.

Partners can no longer claim to be victims

Posted in Commentary

The principal victims of this phenomenon have been those lawyers who become trapped in the culture of short-termism. That culture is especially rampant among the prestigious big firms, where, as a group, lawyers are the unhappiest.

Steven J. Harper

Victims. The word conveys a sense of passiveness-something happened to a person.  And for a while, that was an apt description for the lawyers who became casualties of the Great Reset back in 2008.  Nothing like the Great Reset had happened before, so without history to act as a guide, it is hard to view those whose careers were ruined or set back as anything other than victims.

No more.  When things happen because of informed and knowing choices, however calculated the risk of the choice made, the person who may suffer is not a victim.  To characterize such a person as a victim demeans the real victims around us.  It is 2014, now more than five years after the Great Reset.  While bad things are still happening in the profession around us, it is not as if there has not been plenty of warning and plenty of time and reason to study the situation, become informed and make well thought out, reasoned and studied decisions about your career.

If you choose to live in a culture of short-termism, great. Fantastic.  But if things go to hell in a handbasket in your firm, don’t expect sympathy, even if you did not contribute to the firm’s downfall, even if you played by the rules.

Lawyers are smart people.  Our clients come to us when they have problems and they expect us to investigate those problems, determine the truth and counsel them on how to act in light of the accumulated evidence and the likely outcomes.  It never ceases to amaze me how people who have, or at least claim to have, such superlative investigative skills can fail to exercise them in their own situation.

Whether people accept short-termism because they think it intelligent to do so, or whether they are simply to afraid to change their world until the doors hit them on the ass as they leave their office for the last time, the outcome is a chosen one.  So if this happens to you, you are not a victim.  Your secretary is a victim.  The copy room guy?  Victim.  Associates? Less a victim than the others but still a bit of a victim. You, on the other hand, may be a coward, a fool, a bad gambler, or just damned unlucky, but you are not a victim.

10 Value Questions Inside Counsel Should Be Asking Themselves

Posted in Commentary, Hourly Rates and Alternatives

1.   Has your management mandated (or gently suggested) that you reduce your spend on litigation? Would it be a good career move if you achieved a reduction in total spend?

2.   Do your law firms spend more than the established budget?

3.   In 2013, were you unpleasantly surprised by a bill you received from litigation counsel?

4.   Do your cases have long cycles times? Do your cases tend to settle close to trial?

5.  Do your outside counsel leave no stone unturned without clearing that approach first?

6.   Do you (or your staff) have to spend time policing bills from your outside lawyers?

7.   Do you pay your outside firms the same amount whether they achieve your objectives or not?

8.   Did your outside firms raise their hourly rates for 2014?  Did they provide added value to justify the increases?

9.   Can you point to specific steps your outside counsel are taking to be more efficient in how they handle your cases?

10.  Do your volume discounts result in actual savings on total spend?

If you answer some or all of questions 1 through 8 with a “yes” or questions 9-10 with a “no,” you really should be exploring value fees.  When done right, such fees may help you reduce your spend by 30% or more.