December 2009

For most people and most businesses, the end of 2009 and the end of the “aught” decade could not come soon enough.  Well, rise and shine, 2010 is here.  Time for a positive, upbeat attitude.  (If you celebrated the end of the decade last night and “aren’t quite yourself” this morning, you can start having your positive, upbeat attitude tomorrow.)  I wanted to start out the decade with some predictions.  They aren’t worth much, but maybe but maybe one or two might spark a conversation.

Nicole Auerbach1.  My partner Nicole Auerbach will have a breakout decade.  When you get to a certain age and a certain level of experience, you just know when someone has all the tools and that “inner something” that separates the truly exceptional from the merely good. I’m that old now, and I love the vantage point.  From intellect to presence to business savvy to an uncanny ability to read people, Nicole has all the tools and more. She’s starting to believe in her extraordinary abilities to help clients and is instilling a level of confidence in clients that make them want to bring her their most difficult problems.

2.  My colleague Hank Turner (right) is going to establish himself as a powerhouse.  From a thousand-watt smile that lights up a room to a commanding presence that makes me envious to a brilliant and incisive mind, Hank has everything working for him.  Plus he gets “it.”  He has a way with people and he understands that ours is a service business.  He gets “law 2.0” and recently posted his insights on protective orders on Legal On Ramp so that inhouse lawyers could benefit from some recent experiences and help ensure their interests are protected.  Hank has a sharp, inquiring mind and is relentless in his pursuit of excellence.  I love watching him develop and will continue to be inspired as he blossoms into something extraordinary.

3.  Alternative fee arrangements will become the standard, and if there are any new law school graduates hired from the classes of 2009 and beyond (it seems that no 2009 grad has started before 2010), they will know only non-hourly fees.  Susan Hackett and her ACC colleagues will celebrate the success of the ACC Value Challenge for an entire day before tackling the newest issues confronting in-house counsel.

4.  Lawyers will be required to learn the basics taught in business school and will begin offer business advice tempered by business savvy.

5.  Some law firm will open an office in Antarctica, and Gerry Riskin of Edge International will become the first law firm consultant to have clients on all seven continents, and also will become a lifetime ConciergeKey member.  In all seriousness, Gerry is a friend of mine and serves on Valorem’s Advisory Board, but more importantly is one of the world’s leading law firm consultants.  For law firms, the 90s and 2000s were, until 2008, times of relative ease.  The next decade will be tumultuous on many fronts, and the space between Gerry and the few other elite consultants and the rest of the pack will expand to a large, gulf.  Law firms that want to survive and thrive but know they need to change to do so will be lining up at Gerry’s door.

6. Law 2.0 organizations like Legal On Ramp will become must-join organizations for any in-house lawyer hoping to be successful, and LOR CEO Paul Lippe will succeed in convincing all law firms representing business to contribute work product, pricing information and research that will make “content” available for free.  Check out this fantastic wikipedia entry on LOR.  Paul is a friend of mine and also on Valorem’s Advisory Board, but he is a visionary and a force to be reckoned with.

7. Fred Bartlit will be trying cases in his 80s with the vigor of 40 year olds, and Bartlit Beck will continue to be one of the pre-eminent trial firms.

8.  The AmLaw 200 will become the AmLaw 150.

9.  Social media will expand its significance.

10.  The legal world in 2019 will not look much like it does in 2009.  The 2010s will be a rollercoaster for all of us.  I love rollercoasters, so I am looking forward to the next decade with tremendous anticipation and excitement.

Happy New Year everyone.

It is year end.  Have the senior managers of your firm visited your firm’s most important clients this month?  Has there at least been a phone call to each of the primary personnel you deal with at key clients?  If not, what on earth are you waiting for?  You should be looking for opportunities to ask your clients how you’re doing and year end is one of the very best opportunities to ask. 

Remember, clients rarely fire their attorneys.  They simply stop hiring them.  So don’t be foolish enough to believe that "if they had anything to say they’d say it" line.  You don’t believe "the check is in the mail," do you?  So why would you be so gullible on client satisfaction.

Drop a dime.  It’s a great investment.  No, make that it’s the best investment.


Fantastic post by Seth Godin.  Here it is:

A few people are afraid of good ideas, ideas that make a difference or contribute in some way. Good ideas bring change, that’s frightening.

But many people are petrified of bad ideas. Ideas that make us look stupid or waste time or money or create some sort of backlash.

The problem is that you can’t have good ideas unless you’re willing to generate a lot of bad ones.

Painters, musicians, entrepreneurs, writers, chiropractors, accountants–we all fail far more than we succeed. We fail at closing a sale or playing a note. We fail at an idea for a series of paintings or the theme for a trade show booth.

But we succeed far more often than people who have no ideas at all.

Someone asked me where I get all my good ideas, explaining that it takes him a month or two to come up with one and I seem to have more than that. I asked him how many bad ideas he has every month. He paused and said, "none."

And there, you see, is the problem.

I agree–it takes many ideas to beget good ideas, and the bad ones most likely outnumber the good ones.  When certain former colleagues used to "what if" marketing ideas I offered, I used to remind them that .300 hitters ended up in the hall of fame.

But I am also a trial lawyer, and .300 hitters in trials end up unemployed.  So how to reconcile these two competing realities?  Putting ideas through gauntlet of colleagues who are smarter than you are, testing ideas out on test audiences, refining and running through the gauntlet again.  And then standing up in front of a jury and putting your idea to the ultimate test.  Creating a compelling story and a compelling way to tell it entails risk.  That is why trials are unpredictable.

What is NOT the answer?  Trial by numbers, the mind-numbingly predictable, follow-the-play-book-and-do-things-safely approach that so many litigators bring to the table.  Because if you follow the playbook, you will end up like the "someone" who is "the problem" in Seth Godin’s post.





Continue Reading Bad ideas, good ideas–and litigation

Dennis Kennedy, the dean of law blogging, annually (since 2004) awards "Blawggies."  According to Dennis:

The Blawggies, which honor the best-related blogs as determined from my personal and highly-opinionated perspective, were first unleashed on an unsuspecting blogosphere in December 2004 and are now an annual pre-Christmas tradition here at DennisKennedy.Blog. I’m very pleased that this sixth edition of the awards makes them the longest running annual awards list for law-related blogs selected by a lawyer named Dennis Kennedy living in St. Louis, Missouri.

The Blawggies are not based on any popular votes, surveys or, God forbid, objective criteria. They are highly-opinionated choices made by me alone, based on my experience, expertise and likes and dislikes gained from nearly seven years of blogging and several more years before that of reading blogs voraciously.


In Search of Perfect Client Service was named the co-winner of "The Marty Schwimmer Best Practice-Specific Legal Blog,  along with Steve Nipper’s The Invent Blog.

I would like to thank the Academy ….  Oh wait–wrong speech. 

Thanks Dennis.  Coming from you, simply being mentioned is an honor.

Continue Reading I am honored to receive a 2009 “Blawggie”

Courtesy of the Lean Six Sigma Academy, I am reading the Guide To Lean, by Ron Pereira.  He notes three ways to express how a company turns a profit:

1.   Price – Cost = Profit

2.   Profit = Price – Cost

3.   Price = Cost + Profit

All the same?  Perspective counts here.  The following is a summary of what’s in the Guide.

Formula 3 is the way government might approach setting a price on something.  You figure out the profit you want, add it to your cost, and you end up with the price.


Formula 2 is a the way a producer who cannot reduce costs views things.

Formula 1  "Lastly we come to the lean formula (Price – Cost = Profit). This formula is arranged in such a way as to say that costs exist to be reduced, not to be calculated. The thinking here is that the market sets the price and the only sure way we can increase profits is by reducing costs."

I found this interesting because while law firms have worked hard to reduce their costs (mostly by firing people), I have seen very little which suggests that firms are reducing their cost to produce that which the sell to their client.  So, for example, you may have less lawyers in the firm because there is less work, but are you staffing cases differently?  Managing them to produce results for the client that costs less?  Firms that bill by measuring time still exist in a cost plus environment.

This is not a new debate, but I did think the discussion in the Guide to Lean provided an interesting perspective.

Continue Reading Your perspective on price makes a difference

Above The Law recently revealed some internal documents from Simpson Thatcher.   If Simpson Thatcher reflects what is going on in large law firms, it is clear that the recession is hurting BigLaw big time:

In 2007, our realization was 110%; in 2008, our realization was 97%; for 2009, we originally budgeted 93%, and we are now running at a realization of around 89%.

The firm’s reaction is equally interesting:

We want incremental business and we are realistic about what is needed to obtain attractive incremental business. We think we are value-added and should be paid as a top-tier firm with top-tier talent, but we need to be competitive with rates. We are giving discounts on some litigation; we are giving discounts on bank and investment bank house account matters; we give busted deal discounts; we are willing to fix fees. If a particular partner rate or particular class rate is a sticking point, we can discount those rates to be competitive. We can quote a blended rate. In brief, we are flexible on rates and want to do what we need to do in order to expand our share of the high-end business out there.

Apparently, desperate times call for desperate measures.  Well, not that desperate:

We considered lowering our rates, but rejected that idea since we are collecting 100% or close to 100% on a high percentage of our business and are able to provide a discount on most of the rest of our business. We think lowering our rates would have a substantial negative impact on our revenues.

Which translates to this: If a client wants to pay us at higher rates, we’ll take it!  But if the client says it will pay us less, we’ll take that too."

It doesn’t sound like Simpson is committed to changing its business model to deliver greater value over the long run, does it?  I wonder how many other firms are engaged in this "treading water" approach to value?


My dear departed father served in the United States Coast Guard during WWII, so this request is one I happily accomodate. 

Scott Greenfield, who writes the brilliant Simple Justice, asked (via Twitter) bloggers to blog about programs that use wreaths to honor those who died in the service to their country.  I thought for a few minutes about what to write, when I realized I could not improve on Scott’s post.  Here is is, in its entirety:

As Christmas nears, wreaths of fragrant evergreens appear on doors, buildings, the grills of pick-up trucks. And for those whose lives were lost in the service of their country, wreaths are placed on their graves across the nation on December 12th in a program called Wreaths Across America. It’s a fitting honor to those who have given their lives for us, and a comfort to their families to know that they are not forgotten.

To the parents who grew old without a child, to the children who grew up without a parent, to everyone who lost a loved one or friend, the thoughts of their loss wasn’t limited to one day a year. In a season of joy, it’s only fitting that we remember as well. By placing a wreath on the graves of our war dead, we show that we honor their sacrifice.

However, there remained a glaring gap. Many of our war dead were lost to the sea, and there are no graves upon which to place wreaths.

A Coast Guard Auxiliarist and World War II veteran recognized this gap, and has begun a program to remember those men and women lost to the sea. The program, called Wreaths Over The Water, was begun at the Lake Worth Inlet Coast Guard Station in Florida. On December 12th, a ceremony was held to honor those without graves. A wreath was placed on the tide for each service, Army, Navy, Marines, Air Force, Civil Air Patrol, Coast Guard and Merchant Marine, each saluted as the wreath floated out to sea. Then one more wreath was laid upon the tide for those Missing in Action and Prisoners of War.

The politics of war bears no connection to the sacrifice of these men and women, or the loss of their families and friends. Having given their lives, the least we can do is remember them, offer comfort to their families and honor their sacrifice.

The hope is that this is the birth of a tradition that will find its way into the hearts and minds of Americans across the nation. This December 12th, there was but one ceremony held in Florida. Next year, let this ceremony be repeated across the nation. Those whose bodies were lost to the water are no less deserving of our thoughts.

Thank you to those lost to the sea.

Thank you Scott.

John DiJulius writes that the customer experience can be viewed through this formula: Reality – Experience = Customer Experience. I would change this a bit, to Reality – Expectation = Customer Experience.  Clearly, this formula can lead to a negative number.  The nice thing about this formula is that it forces the person employing it, in our context a lawyer, to recognize that its about what the customer thinks he or she experienced and what the customer expected, rather than what the lawyer’s thinks the customer experienced or expected.  Focus on the Customer Experience from the customer’s perspective is critical if you want to be known for the quality of your customer service.

Dilbert, courtesy of, December 7, 2009
Here’s the questions of the day.  Other than when hiring lawyers, what other goods or services do people buy without knowing the price?  How did lawyers escape this prevailing rule?  Why are some clients unwilling to insist that lawyers play by the rules that every other person in the company must abide by?


Continue Reading Know Thy Price