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In Search of Perfect Client Service

Why lawyers don't seem to get it

Still Thinking: More Things I think I think.

Posted in Commentary, General

Random thoughts from over the past weekend.

  1. People like recently-fired PGA President Ted Bishop, who was fired for referring to professional golfer Ian Poulter as “a little girl, “make me long for a return to the days of  Mark Twain (“I did not attend his funeral, but I sent a nice letter saying I approved of it.”) and Oscar Wilde (“Some cause happiness wherever they go: others whenever they go.”).   There was a time when name-calling had a certain amount of savoir faire.
  2. I’ve watched with amusement and sadness as one law firm’s sign along the highway went from advertising for mesothelioma cases, to mesothelioma and lung cancer, and now to just any type of cancer.  Apparently causation and wrongful conduct no longer matter.
  3. Those who dismiss concepts like Lean and Six Sigma would do well to remember those words on the operational foundation for many of their clients.
  4. It used to be that plush offices and expensive artwork in law firms made the firm’s clients feel good.  Now it makes them reach for their wallet.
  5. I am overwhelmed by the idiocy of the Chicago Bears’ Lamarr Houston, who tore his ACL (and is now out for the year) celebrating a late game sack of rookie quarterback Jimmy Garoppolo while the Bears were losing by 25 points. You would think the shame of getting whipped so badly so many times in the prior plays would temper the desire to celebrate doing your job.
  6. Rereading Larry Bossidy’s book, Execution. A must read.
  7. I cannot wait for the election to be over. The advertising we are forced to endure is mind-numbing, and I mean that in the worst way possible.
  8. I understand the fear of Ebola. I lived through my kids’ fear of the boogey-man.  But the risk of contracting it is so miniscule that letting the fear drive policy and expenditure of our treasury the way it has is sad.
  9. Lawyers billing to multiple files for reviewing the same document should be grounds for being disbarred. Instead, some lawyers argue they are ethically obligated to do so.
  10. It should be mandatory for litigators to pass a proficiency test showing mastery of basic procedural rules.  Really.

More things I think I think

Posted in Commentary, General, Leadership and Management

Several readers offered very nice comments on my original Some Things I Think I Think post, so I’ve decided to continue thinking.  Well, at least sharing things I think I think.

  1. A recent Wall Street Journal article Lawyers, Judges Modify the View That Adverbs Are Mostly Bad, reminded me of how much I hate pronouns and adjectives. Pronouns defeat clarity. Adjectives are a lazy way to communicate. One of my favorite quotes is from Anton Chekhov (google him), who said “Don’t tell me the moon is shining; show me the glint of light on broken glass.”  Not directly about adjectives, but the point could not be better said.
  2. I don’t know how law firms can say they are client service focused when they don’t talk to their clients.
  3. If you (lawyers) are not actively working on methods to improve your efficiency (more outputs, less time), you are falling behind.  Way behind.
  4. I wonder if any managing partner can succeed if he or she is not his or her own worst critic and, more importantly, their firm’s harshest judge.  The ability to see weakness is key to being able to improve.
  5. As a leader, failure to communicate a clear vision is not good.
  6. It cracks me up when people talk or write about flaws with the billable hour as if it is news.  Dude, welcome to the party.
  7. I love the calls from headhunters asking if Valorem wants to merge with a mega-firm, or even just a vanilla large firm.  Ask someone paroled from prison how much they want to go back.
  8.   Saw a post on Adam Smith, Esq. Partners behaving Badly where a partner became upset because the Managing Partner of the firm was talking to the client CEO. I was disappointed Bruce MacEwen said “firm first and firm always.”  The real answer is client first and client always. If your clients are happy, the firm will be fine.
  9. So much is written about data-driven decisions.  Nice when you have the data in useable form, but you’d be surprised how often the data is not in usable form. Then you have to plan and execute in a lean way.
  10. Jeff Carr turned me on to the concept of Poka Yoke. Check it out.

I’m sure I’ll think I think things again.

Rule 1: Clients get to decide

Posted in Client Service, Commentary

Some things make my blood boil.  Consider these quotes from Part 4 of Pam Woldow’s recent 4-part series, Cutting Corners (Part 1, Part 2, Part 3, Part 4).  The series discusses whether use of Legal Project Management and Legal Process Improvement encourages lawyers to cut corners.  Part 4 includes reader feedback and Pam’s response to certain arguments raised by her readers.

There was a discussion about whether inside lawyers or outside lawyers should be the one responsible for weighing risks against cost.  According to one General Counsel,

We, and only we, should determine acceptable risk because we are the experts on our companies and business strategies.  Our company takes risks every day, and we understand how to evaluate when to dig deeper and when it’s time to move on.  When we don’t want more research or memos or depositions, we have made internal decisions about cost and benefit. 

It is hubris for any outside lawyer to believe anything different, nothing less.  It is the client’s legal problem.  It is the client’s money.  That anyone other than the client should decide how to address the legal problem and spend the money misunderstands the client’s primacy in the lawyer-client relationship.

As Pam reports, outside counsel uncomfortable with the client’s primacy resorted to the well-worn “malpractice risk” argument.  It goes something like this:  “I, the outside lawyer, need to do x, y and z because my malpractice carrier says so or because I will be at risk of being sued for malpractice if I don’t.”  Put aside that few clients ever sue for malpractice. Put aside that clients willing to take risk understand they must accept the risk associated with their decisions.  Put aside that no malpractice carrier ever—ever—said a lawyer must turn over every stone and milk their client for every last dollar.  Put all those things aside.  If a lawyer is uncomfortable with the client’s decisions on risk, then he or she should quit.  They have no obligation to represent a client.

Let me be clear.  Rule number 1 of being a lawyer is that the client gets to decide.  They get to decide scope of work, they get to decide what risks are worth taking.  They get to decide how a matter should be staffed.  It is hubris to suggest that, as an outside lawyer, your views on these matters should govern the client.  Rule number 2, by the way, is that if you don’t like how the client decides these things, you are free to not represent the client.

Quick story:  I was national counsel for a client and we had 50 nearly identical cases in one jurisdiction.  When a motion was filed, it was filed in all 50 cases.  Same motion.  My client’s local counsel would dutifully bill for each case.  “Review motion to substitute attorneys–.2” in all 50 cases.  That meant the lawyer billing 300 minutes—5 hours—for reviewing each motion.  When I told the lawyer to combine all the cases into one matter and review only one motion and simply take on faith that all 50 of such routine motions were identical, he argued his malpractice carrier required him to do it in this manner that caused him to rip-off his client.  I asked for the name of the carrier, which he declined to provide. When I called him back the next day to tell him where to send the files, he professed shock and disappointment and wanted a do-over.  Fat chance, my friend.

Clients get to decide.  It has always been true even though some lawyers may have forgotten.  But it is more true now than ever before, and clients get it.  The clients who may not have understood this now do.  If you don’t like this paradigm, find a new profession.

Bingham’s demise should make everyone wonder about their own situation

Posted in Commentary

Bingham McCutchen is following the Dewey/Howery decline to oblivion.  It seems people are surprised.  They shouldn’t be.  Some number of major firms are the “low end” that create the mediocre industry average numbers that are reported.  But surprised they are, and that always surprises me.  So you can see why this brought a smile to my face:

Embedded image permalink

Hat tip to John L. Davidson (@jdavidsonlawyer).

An Interesting Thought About Resumes

Posted in Commentary

The following is a quote from Mark Horstman, one of the principals of Manager Tools, in his most recent Things I Think I Think. (I am a huge fan of Manager Tools’ podcasts, which I strongly recommend.)

We take grief frequently for recommending one page resumes.  People say they “hear” that longer is what is the standard these days.  (This is wrong, but it is nuanced).

Then people complain as well that recruiters don’t spend any time on resumes.  (The Article on Business Insider I saw said 6 seconds, I think.)

I always think to myself: If you admit recruiters aren’t spending any time on your resume, what makes you think a longer resume is better??

There’s a technology that allows researchers to track your eyes when you look at stuff.  It’s often used with web pages.  It’s also been used on resumes.

Recruiters look at your name, your current title and company, current position start and end dates, and education.

All on the first page of a one page resume.

My own experience reviewing resumes suggests this is fairly accurate.  Which raises the question of why this is so?  My belief?  All resumes look alike, sound alike and there is only so much “blah, blah, blah” that a person can read.  Resumes need to be made unique to stand out from the crowd. Just remember, you can’t make a resume that everyone will like, and if you try, you will end up with a resume that nobody cares about.

Shame on you NFL, Baltimore Ravens

Posted in Commentary

By now, everyone has heard that Ray Rice has been cut by the Baltimore Ravens and had his laughable two game suspension increased to “indefinite”.  And the increased punishment is being lauded by sports pundits everywhere.  All of this only shows how little the NFL, the Ravens and the sports punditry care about domestic violence regardless of their enormous lip service to the contrary.

We saw video of the coward Rice dragging the unconscious body of his girlfriend from an elevator like a sack of garbage. We know she walked into the elevator on her own.  Unless you are of the belief she slipped on a banana peel and knocked herself unconscious, you knew he hit her. Hard.  And believe me, if she had slipped, he would have demonstrated some degree of concern and not dragged her by her hair.

The new video was released that demonstrated that what we knew was true was true.  So what is new?  The decision to cut Ray Rice had nothing to do with concern about domestic violence. It had everything to do with appeasing fans who are upset that the coward was let off so lightly the first time around.  The same is true for the NFL.  And if the sports pundits actually gave a damn about domestic violence, why are they not expressing outrage over this obvious pretext and what it actually says?

My two boys were given the same bright line rule I was given by my father.  Never strike a woman. Never.  No exceptions.  and the rule was not qualified by saying that the punishment is different as long as you’re not captured on video.

Some things I think I think

Posted in Commentary, General

Do you remember Andy Rooney?  He used to do commentary on 6o MinutesBig, bushy eyebrows.  But the thing I will always remember is when he would ask “Did you ever wonder….?” and then go into some offbeat topic.  My question is when did people stop thinking?

  1. When you are walking in a busy airport, don’t just stop.  Would you just stop your car in the middle of a busy highway?  Of course not. Same at airports—there are other people walking and you inconvenience everybody by simply not moving to the right.
  2. In the same venue, please walk on the right.  I don’t know why we do, but we do that in this country.  Plowing headlong into someone walking against the flow is not how I want to start my day.
  3. When someone is scheduling a meeting and asks 25 people if they are available, think long and hard about whether using “reply to all” is a smart move.  I know I don’t want 24 emails letting me know every meeting people have planned on the days in question.  I would rather wait for one email reporting the results of the inquiry.  Think before hitting send—does everyone really need to know the information I am sending? By the way, the answer is “no” more than 99% of the time.
  4. Don’t tell me what “the client” wants us to do if you never talk to the client.
  5. If you are a vendor and calling me unsolicited, make your first sentence really good because if I am not interested by the end of that sentence, our conversation is over.
  6. If you’re a vendor and ever call my cell phone unsolicited, you don’t even get the first sentence.
  7. I really don’t care how special your product is.  Really.
  8.  When you take a deposition, think about whether the witness’ 23 prior jobs all need to be explored in detail?  Is what they studied in college really important?  I am trying to remember whether any of  these facts have been the subject of testimony in any of the cases I’ve tried or trials I have observed.  Can’t think of any.
  9. There is nothing funnier (on one level) or sadder (on another) than watching a lawyer who has never tried a case trying to follow the instruction to object frequently.
  10. It is hard to understand how you can be in a service business if you don’t like to serve your customers.

Perhaps I will think of more things I think I think sometime soon!

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.