You buy holes, not drill bits

DDo you think about what you are buying when you purchase legal services? Do your lawyers ask you what you are buying? If asked, many clients would respond that they were buying one of the following:

  • Time (the lawyer’s)
  • A work product (e.g. A lease, contract, advice)
  • A legal outcome (e.g. A successful court case, an injunction, an effective contract).

Some more sophisticated purchasers of legal services may answer they are purchasing a solution. The truly enlightened will understand they’re buying both the solution, and the effect of the solution and the experience of obtaining the solution.

In Bill What You’re Worth , David W Cottle repeats a story from a surgeon:

Do you know how long it takes a good surgeon to remove an appendix from first incision to closure? Seven minutes.  If you gave me two hours with anyone smart enough to finish college in five years, I could teach him or her how to remove an appendix.  It’s really very simple.  But do you know how long it would take me to teach that same college graduate what to do if something went wrong while removing that appendix?  Six years of medical training.”

A couple of lessons from this – when purchasing a service, you should be paying for skill rather than time spent.

But even more importantly, you should be focussing on outcomes and the experience, which define value, rather than the mechanics of the task itself.  The value to the patient is the successful removal of the appendix, and resolution of any complications, rather than the time taken.  As someone else put its – you are buying the hole not the drill bits.

Some consultants, when advising about cost management, emphasise the desirability of ensuring that the least expensive fee earners do the greatest proportion of the work.  This can be a false economy – it may be more effective for a skilled and experienced lawyer to undertake the work, providing a better outcome.

You don’t buy drill bits (the service), you buy holes, or the capacity to create holes.  When considering the value of the service, look at what you are actually purchasing.

Jack be nimble, Jack be quick – and a good lawyer

When I ask clients what they want from their lawyer, agile is not a quality that comes to mind.  But what is agile? Agile is defined as mentally quick or alert, nimble.  It means the ability to respond to change.  Don’t you want that from your lawyer?

Agile project management is a form of project management particularly popular with software developers.  Its focus is on flexible, iterative management of projects, and is often used to manage aspects of a much larger project.

The benefits of this iterative style of project management, when applied to legal work, are many.  Legal work, particularly litigation, is subject to outside influences beyond those of a software or construction project.  Lawyers argue that project management techniques cannot be applied to litigation because “litigation is like trying to build a wall, with your opponent (and sometimes the judge) trying to knock it down”.  Agile project management techniques are designed to facilitate change and adapt to these outside influences.

Here is a link to “The Agile Manifesto” developed by a group of software developers.  A couple of the principles ring particularly true for legal work:

  • “Business people and developers must work together daily throughout the project”.

Translated to legal work: Clients and the legal team must work together throughout the matter, with the legal team ensuring the client is part of the project, and the client being prepared to be engaged in the matter.

  • “The most efficient and effective method of conveying information to and within a development team is face-to-face conversation”

The same applies to a legal project – arrange formal team meetings, with agendas and action points, rather than relying on emails, conversations on wikis, and the like.  Many slips ups or redos have occurred as a result of lack of face to face conversations.  And the major benefit of these conversations can be brainstorming and problem solving, finding alternative solutions and approaches, that would never occur through emails.

  • “Simplicity – the art of maximising the amount of work not done – is essential”

Lawyers are taught to seek perfection.   But sometimes good enough is good enough, and we also need to understand everyone has a different view of what is perfect.  Focussing on simplicity – whether it be clarifying the major points in issue, the essential aspects of the contract, or writing an clear advice – is a skill many lawyers never develop.  Watch a great advocate in court – he or she will make the case appear simple by distilling and focussing on the key aspects.

  • “At regular intervals, the team reflects on how to become more effective, then tunes and adjusts it behaviours accordingly”.

This embodies the Japanese principle of Kaizen – the art of continuous improvement by small increments.  Most famously, Toyota adopted Kaizen after World War II to develop a sustainable and competitive automotive business.

How often do you, as client or lawyer, undertake end of matter reviews?  How often do you step back during a matter and look at how it is going, what could be changed to make the conduct of the matter more effective?  At the end of each team meeting, ask your team “What could we be doing or how do we change the way we are now doing things, which would make us more effective on this matter?”  It could be that one team member is creating a blockage by not meeting agreed time frames, maybe we improve delegation to better clarify tasks, maybe the client needs to be more engaged.

As a client, I want an agile lawyer with a responsive, nimble mind, and I want a legal team who is agile and applies agile techniques in legal project management.  As law firm or lawyer, I want to be known for my agility and to adopt the Kaizen principles of continuous improvement.  It will keep me ahead of the pack.

Don’t wrestle with a pig. You’ll get filthy and the pig will love it.

I’ve spent much of this year conducting workshops on Legal Project Management, Estimating Costs and Becoming an Informed Purchaser. One theme from attendees, whether external lawyers, in-house counsel, or other clients, is the difficulty in dealing with a difficult opposing party or lawyer.
Judge Gerald Bruce Lee of the Eastern District of Virginia provides great advice for dealing with that difficult opponent.

“Don’t wrestle with a pig. You’ll get filthy and the pig will love it.”

Judge Lee apparently conducts a vigorous “rocket docket”.  But back to the advice.

Difficult opponents come in many forms –
• The incompetent lawyer who does not know what he/she is doing, causing the good lawyer to do more work to try and solve the lack of action or competency,
• The aggressive lawyer, whose modus operandi is to write frequent and lengthy letters threatening interlocutory applications, about all manner of issues.
• The process driven lawyer, whose automated workflow systems sends reminder letters advising of your obligation to do something days or weeks before the due date, and other process letters which are irrelevant to the particular matter. But when it comes to anything out of the ordinary, the process lawyer has difficulty adjusting to the non standard matter.
• The litigant with the “matter of principle” or whose case is their “cause”.

There are various impacts when a matter involves one of these lawyers. There is a danger of a good lawyer becoming engaged in bun fight which distracts from the main issues, with associated increases in costs and possibly a blow out in duration of the matter.  The problem is how to close down the difficult opponent? If you have a docket judge like Judge Lee, it is easier, but even the most experienced lawyer is sometimes wary of ignoring aggressive correspondence, where there is the threat of an interlocutory application. In many jurisdictions, legislation such as the Civil Procedure Act (Victoria), the overarching obligations in the Federal Court Act, and the like, justify taking a position of non- engagement, and give clear direction to the judiciary to support such positions.

Sometimes its the client who is keen to engage in the fight. It takes confidence and experience to convince a client that it is preferable to take the high ground and simply give the opposing lawyer/party enough rope to hang themselves.

But it’s never the answer to get down in the mud and get dirty.

First Impressions – what lawyers can learn from Stephen Fry

The Stephen Fry television series “Planet World” is fascinating, as is most Stephen Fry productions. The second episode looked at different accents and dialects. At one point Mr Fry visits a call centre in Newcastle, making the point that the “Geordie” accent has now become desirable in England. More interestingly, when a call needs to be escalated, the manager preferably has a more classic or “BBC” accent. The Geordie accent is considered to be trustworthy and helpful, the BBC accent to be authoritative.

A brand consultant interviewed, makes the point that, on a call, the accent of the person taking the call is one of the only sensory ways of “delighting the customer”. All fine and well for a call centre, you might say but how is that relevant to me?

Make an “secret shopper” phone call to your own business – whether that is an in-house legal department or a law firm. What’s your impression of how the call is answered? Does the tone, terminology, approach and accent accord with the way you want to present to your clients? Was your call handled with respect and were you transferred quickly to someone who could handle your query?

A major Australian department store yesterday announced it may close its stores on Sundays due to the cost of weekend penalty rates. However, discussion around the water cooler amongst some well practised shoppers brought universal agreement that the terrible service at Myer stores, including the inability to find staff to serve the customer, was a reason most of us did not shop there.

Toby Brown (@gnawledge) in a recent blog post “Commodity does not mean what you think”, noted that “commoditised” work is increasingly the available work for law firms. Clients assume a level of quality in delivery of this work, and therefore the distinguishing factor is the experience. That first contact forms the client’s first impression about what their experience with you will be like. Whether it is how the call is answered, the focus and content of your website, or something else, test out that first point of contact to ensure that the impression given is the one you want.

Change is in the legal wind – is it blowing downunder?

The UK legal market is changing at the rate of knots following the introduction of ABSs (alternative business structures).  From the perspective of an Australian lawyer, it is astonishing, particularly as the similar deregulation introduced with the various Legal Profession Acts in  2004/05, resulted in very little change in the Australian legal market, other than Slater and Gordon being the first publicly listed law firm.  And Slaters were one of the first to take advantage of the UK deregulation, acquiring Russell Jones & Walker.

Other recent UK developments include:

Riverview Law, a venture part owned by DLA Phillips Fox partners, offers fixed fee legal services from both solicitors and barristers (including QCs).  Riverview advertise that they have lowered costs by changing the business model, reducing overheads and relying heavily on technology, including workflows and business systems.  Last week it announced it was opening in the  US to service clients with UK legal needs.

Stobart Barristers – offers direct briefing of counsel with a panel of 1000 barristers.  This is the most unusual newcomer to date, as it has been established by a haulage group, Eddie Stobart Lorries.  It arose out of the company’s legal team’s experience in direct briefing.

With both direct briefing arrangements, it will be interesting to see what work barristers will accept.  It is unlikely that many would be enthusiastic about have the day to day conduct of litigation, and it appears the UK Bar rules would prevent this in any event.  Having said that, the Stobart website indicates they will accept direct briefs in family law, personal injury, debt recovery and medical negligence, amongst other work.

The Victorian and NSW Bar have been proactively seeking direct briefing work over recent years.  However, feedback from corporate lawyers indicates this is often less than successful, with some counsel being very demanding about what their role is and requiring so much support from in-house counsel as to no longer make the arrangement cost effective.  Other barristers have been quite restrictive in the sort of work where they will accept a direct brief.  However, engagement of junior barristers for discovery review is increasingly common as a cost effective alternative to junior solicitors.

Also interesting is Legal Zoom – this is a US based online legal documentation service which has filed for an IPO of up to $120 million, and proposes to enter the UK and other world legal markets.  490,000 orders for legal documents were placed with the site in 2011.  It’s hard to argue that this doesn’t impact the legal market.

It will be interesting to see how this impacts downunder.