5 tips for taming your outside counsel
The balance of power is shifting in the world of legal. Gone are the days where lawyers are seen as all-seeing, all-knowing, all-powerful oracles. Very few firms still enjoy being in a position with their clients see it as a privilege to be serviced by them. Clients are now very firmly in the driver’s seat and are much more comfortable shopping work around, issuing RFPs, requesting alternative fee arrangements (AFA’s) and using panels.
The question is, has this paradigm shift actually resulted in clients getting better value?
Maybe – but here are five tips to ensure you’re getting maximum value from your legal counsel.
1) SCOPE EVERY JOB.
All good legal starts with a good plan. There is no excuse for your lawyer not to have a coherent strategy before turning on the clock when dealing with your legal issue, and they usually do. The trick is getting your lawyer to document that plan and communicate it with you. The act of documenting a plan is incredibly simple and hugely powerful in terms of clarifying strategy, process, resourcing and timing.
A simple scoping document ensures your instructions have been clearly understood and interpreted, and gives you peace of mind knowing that your issue is being dealt with thoughtfully, and cost consciously. Ideally you would ask for a scoping document (even a basic one) prior to fully engaging.
You’d expect this kind of document from any other service provider, why not your lawyer?
Scoping every job, no matter how big or small improves your understanding of the process as well as setting a benchmark. As a client you’d hope that over time, repeated work would get more efficient and cost savings would be passed on.
2) QUESTION THE PLAN.
Lawyers are used to being issued instructions then going away, using whoever they want to do whatever they want then returning with a deliverable, and an invoice that may or may not resemble what was discussed up front.
Forcing a scope of work is one thing, casting an eye over it to ensure all work is focused and relevant, and that it is being staffed appropriately (you may even identify tasks you could perform yourself) is the next level.
It doesn’t have to be done in a threatening or accusing way – by far the best option is to simply let them know that your policy is to ask for scoping documents before every matter and that you will want them to step you through the scope of work once complete, and prior to commencing work.
3) DISCUSS FEES OPENLY AND CONFIDENTLY BEFORE ENGAGING.
If your lawyer won’t give you an estimate or discuss fees up front – don’t engage. It’s that simple. It’s a huge red flag that indicates either a lack of understanding, or an intention to ‘get a feel for things’ at billing time, which is another way of saying that they wish to manipulate the process in order to take you to the limit of your comfort zone.
If your lawyer says it’s too complex, chances are they haven’t completed item number 1 on this list.
If they have scoped the job but still won’t give you an estimate for the whole job (bearing in mind you’ll have to be flexible as things change, new information comes to light etc) then ask them to estimate the first phase, and then again when they complete that piece of work and so on. If they still resist find someone else.
4) FOR LITIGIOUS MATTERS OR LEGAL DISPUTES, ALWAYS ASK FOR A RISK ASSESSMENT.
Most good litigation lawyers will do a risk assessment as a matter of course, but not always. It’s a piece of work (chargeable) that they’ll do to get a full understanding of “what’s at stake”. It will help you understand the actual value of what you stand to gain if you win, or lose if you don’t and gives you a better idea of the course to pursue at the outset.
Some litigation lawyers default position is to fight, when a clear risk assessment might make it obvious that settlement is the best option, and a good risk assessment can be referenced throughout the matter to ensure you are making the right decisions along the way.
5) STANDARDIZE REPORTING
If it is your role to liaise with outside counsel, either in your role as General Counsel, or as part of the wider executive team, it can be a daunting task to try and make sense of the legal work flowing in and out of your organisation. Without the right tools and information it’s almost impossible especially where multiple service providers are involved.
One simple way to improve your overall understanding of your company’s legal activity, is to mandate the use of a standard reporting format. It can be as simple as an Excel template with standard columns that your legal service providers completes on a monthly basis, that outlines each live matter they are currently dealing with, along with current status, fees to date, unbilled work in progress, outstanding estimates, estimated fees next month and estimated completion date.
A standard format means you can efficiently aggregate and use the data. These are all metrics most firms should have on hand, and should be happy to pull together and provide to valued customers.Some of these tips may be uncomfortable to begin with. Many organisations have excellent personal relationships with outside counsel, the question is; Are you fulfilling your obligations to your organisation by ensuring you are getting maximum value? Like any of us, lawyers are creatures of habit, the problem is that over time there are many less than ideal habits that have become part of the culture of law.
The five tips above will help you to help your legal counsel break those bad habits, strengthen the bonds between you and them, and ultimately give you confidence that you have in place a robust process for dealing with your organisation’s legal obligations.