You know what happens when a rubberband is stretched too far. It snaps. The surge in just the past week is stretching many law departments. And there is more to come.

To recap. In the past few days, SXSW canceled the iconic tech and music festival. Facebook canceled its annual F8 Developers Conference. Google canceled its Cloud Next Conference. TED canceled its TED2020 conference. The Ultra Music Festival has been canceled. Some sporting events are being played without spectators.  Schools have converted classes to online only.  Many businesses have canceled large or company-wide meetings. Many tourist attractions in Italy, Japan, China and other countries have been closed. The list of events, meetings, and attractions canceled or closed is expected to continue to grow.

The cancellation of events does not even begin to address the economic impact of the virus. Apple announced it would not meet its current quarter revenue projections. Fortune magazine reports that “[a]ccording to Amenity Analytics, a natural language processing company, references to “coronavirus” have been made over 8,000 times across over 1,000 companies on earnings call transcripts, as of Feb. 26.” Major stock indexes have declined as much as 12% since their high on February 19.

The virus is hitting something even closer to home for many business–their supply chains. And disruption of supply chains often results in failure to meet sales obligations.

I could go on, but I don’t think anyone believes that, health risks aside, the coronavirus is not a significant threat to businesses.  There is going to be a lot of new, virus-driven and virus-related work that will end up with law departments.  Force majeure will go from drafting afterthought to a clause discussed in boardrooms. HR departments will need to be advised on policies regarding health and safety.  There will be negotiations with suppliers and also with purchasers. Calls may pour in. Some companies will need to have their in-house teams pay close attention to virus-related issues, meaning other work does not get done. Some issues are not manpower issues, but data-extraction issues–how many contracts of a certain type has the company entered?

Each business will have its own set of problems.  While some of the problems are not legal ones per se, most have at least a legal element or feel like they are legal.  When no one else is equipped to handle problems that require multi-disciplinary talents, most businesses send those problems to the law department; the law department that already, in all likelihood, is at capacity or stretched thin with inadequate budgetary resources.  The challenge will be daunting.

This need for multi-disciplinary resources to provide solutions to customers’ business problems is precisely why Nicole Aurebach and I took the lessons we had learned as founders of Valorem Law Group and joined Elevate Services and created ElevateNext Law just about two years ago. The heavy lifting of data extraction from contracts (just how many of these contracts do we have?) isn’t effectively handled by lawyers. Such tasks can be handled more effectively and faster by a computer. Are temporary resources needed to analyze contracts to identify recourse if suppliers can’t ship their product to us? Are we being flooded by inquiries who have bought something from us that we may not deliver? Traditional law firms might provide an answer to some of these questions, but we joined Elevate because it has the depth of resources to help customers solve their business problems.

If we can help, contact us.

Heck of a title for a post about litigation, isn’t it?  Bear with me for a few paragraphs and my point will be clear.  I promise.

Before I go further, ask yourself why you don’t outsource problem solving for your own problems.  Have you ever thought about going up to a random stranger and asking her to solve a dispute you are having with another person?  Would you feel better about crowd-sourcing the solution, asking, say, 12 people to come to a consensus about how to solve your personal dispute?

Think about these questions from the standpoint of a General Counsel.  Would it be a good career move to suggest to your CEO that you get a resolution to a business dispute by going to a random street corner and asking a passerby to solve your corporate business problem?  Would it be a better career move to crowd-source the solution to 12 random strangers?  I once asked a room full of General Counsel how many would want to make either proposal to their CEO. Not surprisingly, not a single hand appeared.

At this point, most are likely to agree that the random stranger and crowd-sourcing solutions are not wise approaches to dispute resolution.  Yet that is exactly how many business disputes are solved. Except the random stranger wears a black robe is referred to as “Your Honor,” and the crowd is called a jury.  Every B2B lawsuit represents a decision to outsource the solution to a business problem.

I have been a litigator for 37 years.  I tried my first case two days after being admitted to the bar, and, to this day, not much rivals the feeling of cross-examining a witness or making a closing argument to a jury.  With that, I feel comfortable suggesting that the outsourcing of solutioning for business disputes is a business failure, the abandonment of the hard work of finding a suitable solution because it is easier to “give it to the lawyers.”  Lawyers need to learn how to say “no, it’s your problem, not mine.”

In The One Minute Manager Meets the Monkey, Kenneth Blanchard and William Oncken describe the standard business practice of taking the monkey off of my back and putting it on yours.  “Hey, Mary, can you help me with this problem?” is the request to let me take the monkey off my back. “Sure, Bob, happy to help” is the agreement to take the monkey.  The transfer of the monkey is accomplished.

And so, it happens in most corporations.  Bob is trying to resolve a dispute with a difficult customer and asks Mary, the General Counsel, to take the monkey off his back.  The dispute is now Mary’s to deal with.  Bob moves on to other things.  And he is in the catbird seat to be critical if the resolution is not as good as he believes should occur.

The same is true when a lawsuit is filed — “well, it’s a lawsuit so I have to send it to Legal.”  Knowing that “sending it to Legal” is always an option makes reaching an agreement with the other party less urgent.  You can always just say “they were unreasonable, so it ended up in litigation.”  That excuse, it seems, has become acceptable.  It is the veneer used to disguise the use of outsourcing and crowd-sourcing as the means to resolve a dispute.  The unacceptable, when disguised, is suddenly acceptable.

In the abstract, people know the waste and futility of litigation.  Lots (and lots) of legal fees.  E-discovery has become a license to print money, and disputes about process frequently overwhelm the true dispute between the parties. Litigation consumes an important and limited resource—executive time.  Lawyers don’t know what happened.  We have to learn by talking to the people who were involved—business people.  When business people are helping the lawyers, they are not doing their actual jobs.

The real world always intervenes.  Litigation takes time, sometimes years.  People get promoted or leave the company.  Priorities change.  Suddenly the business dispute is now getting in the way, but the sunk costs limit resolution opportunities.  And the lawyer who accepted the monkey feels pressure to achieve an outcome judged to be acceptable by someone who frequently has no real insight into the original dispute.

The formulae for this view of litigation are simple. Disputes ≠ litigation. Diputes ≠ litigator. Fast > slow. Resolved > not.

So, back to the title, the famous quote by Prussian General Carl von Clausewitz.  That which was obvious to von Clausewitz is just as obvious with respect to B2B litigation.  But, let’s face it, “B2B Litigation is the Continuation of Business by Other Means” doesn’t have the same power as the title of a blog post.  But this take-off is just as true as von Clausewitz’ original utterance.

If litigation is just a continuation of business by other means, it is other means that are slower, more expensive and less certain that the alternative of early resolution. Particularly in the face is growing demand for already limited resources, modern General Counsel are going to have to create an institutional expectation that business monkeys will not be accepted.  Business people need to resolve disputes in which they are involved.  A dispute is not any different than any other business issue where negotiations and compromise are the order of the day.

Forcing business people to deal with their own monkeys is not the same as throwing them into the deep end without a lifeguard.  Richard and Daniel Susskind, in their book, The Future of Professions, write about the transition of lawyers from “sage on the stage” to “guide on the side.”  Acting as an advisor, a counselor, is a role where lawyers can add great value. It is a role many General Counsel play on a wide array of issues, some legal and some not.  But being a counselor is far removed from being a litigator.

Here’s my prediction for a company that determines that “the business” is responsible for cleaning up its own messes and lawyers adapt to the counselor role. There will be fewer messes.  Quality will improve.  People will do things right the first time. Contracts (and thus performance expectations) will become clearer and simpler—people will insist on clarity and simplicity so they know what is expected of their operation.  All positive things.

This is the biggest lesson from 37 years in the trenches.  Please, put me out of business.

Earlier this year, I changed the name of this blog from In Search of Perfect Client Service to In Search of Great Customer Experiences. I explained the reasons, but I glossed over the change from client service to customer experience.  Recently, I was challenged to explain why clients were no longer clients, but instead “mere customers.”  This is my response to that challenge.

Client is defined as a person (or entity) who uses the professional advice or services of another.  So, for lawyers, ABC company is a client, but for an IT vendor, ABC is a customer?  The example illustrates that the term client or customer does not result from the customer’s nature, but from the seller’s.  In other words, lawyers are special.

But they’re not.  Lawyers live in a parallel universe that my friend (and customer) Jeff Carr refers to as “Lawland.” Candyland, but without the fun.  Lawland is the place where lawyers are special, non-lawyers merit no consideration, and the traditional rules of math, business and physics do not apply. It is not the real world, to be sure.

So strike one for client. It perpetuates a stereotype that deserves a rapid and permanent death.

Strike two is that the line between law and the rest of the world is becoming hazy at best.  Effective solutions today tend to be multi-disciplinary. The best teams involve far more that simply lawyers, and there is no reason why the language of lawyers trumps the language those dreaded non-lawyers, I mean people who live in the real world employ in their business dealings.

The last issue , aka strike 3, is that lawyers have abandoned the entire experience arena. Whether we call it client experience or customer experience, lawyers tend to suck at providing great experiences.  The rest of the business world has recognized that customer experience is the key to having customers (or clients) in the 21st century.  I choose to use the language of those leading the path in providing great experiences for buyers of services and goods.

Where I come from, strike 3 means you’re out.  And that is why this blog is about Great Customer Experiences.

On Friday, I participated in an exchange of tweets with @adamdavidlong, @DBRodriguez, @RoninMikeSimon and @ronfriedmann about the importance (or lack of) of outside investment in law firms.  I weighed in with a note that having linked up with @ElevateServices and founded its aligned law firm, @ElevateNextLaw, we (@ElevateNic and I) were evidence that lawyers could work closely with business professionals, data scientists, tech developers and other lawyers to accomplish great things.  Ron Friedmann suggested I blog about this, and so here goes.

The backdrop to this discussion is ABA Model Rule 5.4(b), which famously prevents any “nonlawyer” from maintaining an ownership interest “if any of the activities of the partnership consist of the practice of law.”  This ownership restriction has been largely eliminated in Canada, the United Kingdom and Australia, among other places.  The substantial cost of technology development combined with the acceleration of the role of technology in law has magnified the focus on Rule 5.4 and whether it is a good or bad thing.

Much has been written about the need for access to capital for technology investment to compete in the legal sector, and I will not recount that body of literature here.  Instead, I will share the decision-making that my Valorem and ElevateNext Law partner, Nicole Auerbach, and I went through.

Nicole and I were comfortable being “different.”  We had started Valorem Law Group in 2008, just before the “great reset.”  Our commitment to value billing instead of hourly billing resonated with in-house counsel and our practice grew. But only to a point. Our size allowed us to take a case or two from major customers, but not to make a dent in their universe.  We often were asked to take a case to show a customer’s other firms that “it could be done.”

We were still playing at the periphery for many of our customers, however, and we both wanted to make more of a dent. We analyzed what held us back.  At the same time, we analyzed what was happening in the market and saw that lines were blurring and focus was shifting to systems and processes that reduced the demands a given business placed on its law department. This focus on demand reduction was an inevitable outcome: it was the logical next step in the “do more with less” challenge most law departments continued to face even after years of efforts to “cut the fat.”

The blurring of the lines issues was a bit more nuanced.  As law departments sought to reduce demand created by business units, the working relationship between the law department and those business units was growing closer. The lines between “us” and “them” were blurring as more businesses were learning to operate as a single team. The challenge Valorem, and every other law firm, faced was how to assist in the seamless integration of law departments into the business.  After all, if the integration was effective, there would be fewer lawsuits and less work for Valorem.

We addressed this issue in a “if money was not an issue” exercise.  We knew we needed to be bigger so we could operate at a scale that could make a dent.  We recognized that law in general was headed toward being more data driven, so we not only would need access to data but we would need expertise in discerning the value of various types of data.  We could try to buy access to data with capital, but better yet would be to have systems that collected data to use to create value.  Thus, not only data, but tech also would be key.

As we surveyed the tech landscape, it appeared to us to be highly fragmented, with lots of companies taking narrow slices of the tech “pie” and developing solutions to problems that most people did not have or would not want to have to sign on to a new system to address.  In other words, most tech companies in our analysis were not customer friendly—they were tech people trying to make a new toy without thought on how people would use it.

At this point in our analysis, we circled back to the reality created by the need for money to access tech and related expertise. We recognized the need to join forces with an entity that had the attributes we noted above. But when you start thinking about “joining forces” with someone, the issues of values, principles and “why” all become central, not to mention the inevitable change from total freedom to having to operate under someone else’s rules.

This isn’t the place to describe the vetting process we went through that lead us to Elevate Services, but we aligned almost perfectly in terms of our “why” (make a dent in the legal universe), our values and our belief in where the legal world was going. Plus, while I don’t have a lot of experience in large businesses, I believe it would be hard to find a better group of people.

The choice of Elevate checked off all of our boxes.  Tech. A focus on results, not hours. A belief that the focus needs to be on the customer’s business, not some other metric. A belief that we need to prevent problems from occurring, and a belief we need to use reduce the friction between “legal” and “business” and collaborate to control risk but accelerate business outcomes.

Frankly, the “how” we accomplished this in light of Model Rule 5.4 was fairly simple.  Companies with aligned law firms, like Clearspire, provided a path.  ElevateNext Law is a standalone law firm.  Nicole and I are the two owners of the firm.  The other partners are akin to income partners in traditional law firms. Nicole and I are also employees of Elevate and part of its Executive Management Team.  The long-term value play for us is not our ElevateNext compensation but growing the value of our Elevate stock.  We accomplish that by working seamlessly for our customers. The value for us is the size, additional skill sets, technology and global reach Elevate offers. The value for Elevate is that work is traditionally had to turn down because it did and might involve the restricted practice of law is now work it can handle in partnership with ElevateNext.

The key to this relationship is that the business, not the law firm, is at the center of the relationship. It won’t work the other way, and that is why traditional law firms, especially large law firms, will not follow this path.  Entrepreneurial firms, like Atrium, will follow the same or similar path.  The question tech companies and tech investors will be forced to answer is whether they can stand alone rather than create an Elevate Services-ElevateNext Law type of relationship. Both parts are essential to solving the most perplexing business problems customers confront.

In one of my favorite West Wing episodes, President Bartlett is playing chess with Sam Seaborn. He implores Sam to “look at the whole board” and at the end of the scene, Sam realizes the sleight-of-hand President Bartlett had played to diffuse a brewing military crisis.  I was reminded of that scene yesterday when I was reading the commentary about Epstein Becker’s  announcement of a “strategic alliance” with Deloitte.  The internet was near meltdown with “the Big Four are coming” refrain.

Look at the whole board.  Are they here?

Look at the whole board.  What do the prinicpals mean by “strategic alliance.”  Two words that, pinned together, suggest the combination of Amazon and Apple.  Or maybe just an agreement to sell Apple products on Amazon. Oh, by the way, the Apple products being sold on Amazon are just watch bands (actually, there are more, but allow me the literary license to make my point).  Both Deloitte and Epstein Becker are sophisticated and PR-savvy.  Both have good writers capable of saying things clearly or less so.  The writers are good enough to say nothing in a way that sounds like what they are saying is revolutionary.

Look at the whole board.  What have the parties actually agreed to?  What conduct will be different? What do customers get besides fancy marketing talk? We may never know, but they announced is an intention to refer each other business in geographies in which they do not practice. Because Deloitte US cannot practice law, why not get some referrals in return for referring the US work?

Look at the whole board.  The arrangement is “non-exclusive.”  If the parties were actually starting to date with plans to get serious with one another, you would expect some exclusivity. Instead, Epstein Becker will be able to provide “joint service offerings,” which is marketing-ese that translates into “we’ll have a couple of meetings and then talk about what a beautiful date I have, even though we aren’t really dating.”  Fancy talk to make you see something other than “the whole board.”

We’ll know more in a year–if this agreement is what people were suggesting it was, Epstein Becker’s revenue and profits should soar in 2019 and those numbers will be reported in early 2020.  In the meantime, count me a doubter.  And customers being sold the “combination of the century” or whatever it will be called, would do well to ask to understand the economic connections, the workflow connections, the responsibility for outcomes and the efficiencies that the combination creates. What are the metrics that show the combination yields added value to the customer?

Look at the whole board.

I recently learned that I was named a BTI Client Service All Star for 2019, the sixth time I have been named. As with each previous time, I am honored to have been selected for this recognition.  This year carries some special significance, however, because it is the first time I have been recognized for my work for ElevateNext. It bears noting that customer service is not a one-person thing.  I am a part of a terrific team that includes not only my ElevateNext colleagues, but also my colleagues at Elevate Services. Thank you to my colleagues for making this honor possible.

Today is International Women’s Day.  I am lucky–and extremely proud–to work in a company with so many great women throughout the company, especially in leadership positions.  Elevate shared is diversity and inclusion report to the public, but the data doesn’t convey the dynamic role these women play in the company and how they are shaping our future, making us even better. So let me start this post with a hat tip and thank you to the women on Elevate’s Executive Management Team: Joyce Thorne, Kunoor Chopra, Megan Heltemes, Myriam Schmell, Nancy Fraser Michalski, Denise Nurse, Janvi Patel and Raj Boer.  Today, I celebrate these women, among many others.

I deliberately left one woman off the list of Elevate’s Executive Management Team because I wanted to offer a special note of appreciation on this important day.  When I finally end my journey in the legal world, I will be fortunate to look back over a long (and hopefully still longer) career that includes any number of wise or lucky decisions that helped me succeed on this journey.  But no matter what happens in the coming years, the wisest and luckiest decision I have made was be to become partners with Nicole Nehama Auerbach.  She has always been an exceptional person and a phenomenal lawyer.  I have watched her grow and evolve as a leader and develop a level of wisdom few can match.  She displays an incredibly deft touch with people–I’d like to think that I’ve helped her learn (by repeated practice on me) how to control the inflated egos so common in our industry. But she cares deeply about everyone she works with and treats every person she encounters from receptionist to Executive Chairman with the respect and appreciation to which every person is equally due. And while Nicole is truly a great partner, she is an even better friend.  I shall value her friendship into eternity.

Nicole is the kind of person who, when she reads this, will conjure a list of ways I have helped her.  Perhaps a couple of the things she comes up with will be true. But I know for certain that whatever is on her list, it is far shorter than the list I have of how being Nicole’s friend and partner has been the blessing of a lifetime.

I will admit it up front–I am in awe of Navy SEALs.  My brother-in-law was a career Naval officer and, once upon a time, my sister ran the officer’s club at the Naval Amphibious Base in Coronado, CA, home of the SEAL Command.  Through them, I have met a number of SEALs, each as impressive as the the next.  I have heard SEALs speak to audiences in which I sat, and I have spoken with SEALs while sharing a beer or several.  I will never forget the time one SEAL told me there were 8 ways he could kill me with just his little finger. True or not, I absolutely believed him.  So I fully admit I suffer from hero worship.

Now that my confession is behind me, let me state without equivocation that SEAL teams are the most effective fighting forces on the planet.  I have always wondered why, so I’ve read as many books by and about SEALs as I could find.  I just finished The Navy Seal Art of War, by Rob Roy, a retired Chief Petty Officer and long-time member of SEAL Team Six–the best of the best.  Drawing on lessons learned as a SEAL, Roy applies the lessons to corporate America. The lessons make great sense to me, though I confess to perhaps reading them through the prism of my admiration. But I wanted to share a couple of lessons Roy shared–lessons from both his SEAL experience and also from his corporate training experience.

1.  Practice.  Practice. Practice some more.  And then Practice even more.

“Close Quarters Combat [hand-to-hand] is one of the most difficult things a SEAL does. Something as intense as hand-to-hand fighting requires that an individual be honed to a razor’s edge so that actions aren’t debated or deliberated, but are performed without hesitation.” He explains how this razor’s edge is achieved: “when you are well-trained, everything becomes instinctual….Repetition (training) leads to memorization and memorization leads to instinct. Therefore, one must train and train their skills until they know a procedure cold. And then they must train some more.” If I look at my own performance critically, I see a massive failure in my own levels of preparation measured up to what should be required.  It’s a good exercise for everyone, regardless of job description.

2. Teams matter

“SEALs expect to lead, but they are willing to be led by someone with a better plan….If, in the heat of battle, someone else on the team has a better extraction plan than the team leader, the team leader will defer to the other’s expertise. That kind of ‘team ability’ requires trust, confidence, and respect from every member of the team. It’s also what makes SEAL teams so special and effective. Rank may have its privileges, but it’s usually moot on operations.”

There is so much packed into that small statement.  What strikes me is the lack of ego in decision-making. Again, something to aspire to achieve.

3.  Teams really matter

“I find the notion of team before self resonates with my clients, the executives I work with. The understand and value a culture of teamwork. When you’re in charge of an organization, it’s easier to see the value of an orchestrated, team-focused approach to running  a business. Individuals, however, sometimes are unable to see things as clearly.”

I find small teams more effective than solo cowboys. Teams neutralize the weakness of an individual.  Teams reflect the maxim that 2+2=5.  Why don’t we use them more in our business? Why are we so found of silos?

I am left to wonder how successful a business could be if it embraced the lessons of our most successful fighting force.  But I know that some lessons they have learned are critical for me to learn.


After nearly 14 years of writing this blog, I’ve changed it’s name.  For a long time, client service (In Search of Perfect Client Service) was the right place to focus attention.  But as with other trends, everyone now claims to be great at it.  The notion of customer service has lost any meaning: if everyone claims to excel at providing great customer service, well, it is time to shift focus.

As I thought about it, I realized that client service was about me and us, the service providers.  I’ve been slow applying a lesson to customer service that my partner Nicole Auerbach and I applied to Valorem Law Group’s billing practice since its inception.  Clients judge the value of what we deliver, not us.  It’s about what value clients think we delivered, not our belief. The same is true for service. We can think we’re providing great service, but if the client doesn’t feel the same way, we’re wrong.  And then there’s that word–client, and seems to go with it: “my client,” implying ownership, which is the wrong dynamic, or “the client.” Could we be any more impersonal in describing a relationship that should be very personal? And finally, there’s that word “perfect.”  The search for perfect hinders improvement.  So I decided to focus on great. Great is worthy, its achievable, and it can always be improved upon.

And so, today, I announce the name change for this blog–In Search of Great Customer Experiences. I hope you agree the change fits the times.