Articles Posted in Managing Your Lawyers

A final installment in this three-part post.

What’s a practical basis for placing a value on attorneys’ work for the business?

In Part 1 I addressed the legal profession’s prevailing measure of lawyers’ work:

How long did the attorney decide to take doing the job?

Cost-plus. Bill the client company by the hour.

In Part 2 I addressed “data-driven” methods (with at least one present-tense exception that I’ve found, put this under the heading of maybe-in-the-future).

Here in Part 3 I address:

A price agreed in advance — between lawyer and client.

An example:

Barlit Beck, LLP

From Fred Bartlit’s April 5, 2010 Orr Distinguished Lecture at the University of Tennessee Law School:

In the early 1980’s Chicago trial lawyer Fred Bartlit was head of litigation at one of Chicago’s finest firms. He’d brought in a client whose big case was keeping 8 partners and 30 associates busy for months. “My partners loved me”, he said.

But Bartlit felt that this firm could deliver more effective legal representation to its clients for less money.

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In Part 1 I addressed the need for reliable numbers relating to the value of legal services.

If what gets measured gets managed — and if measuring the wrong thing is worse than measuring nothing at all — then client company executives need a reliable measure of the value of legal services in their budget.

Toting up hours billed gives “certainty” about the method by which attorneys came up with the price that they charge to a client company.

But that total tells us nothing about the actual benefit received by the business.

Hence our consideration of two alternatives: “Data-driven”, and a price agreed in advance.

“Data-driven” calculation of the value of lawyers’ work for client companies.

I refer to “data-driven” in quotes because there’s (a lot) less here than meets the eye when you read legal profession headlines.

In fact, I’ve found just a single instance of data-gathering and analysis as the basis of determining the value of what attorneys do for a company. If I’ve missed something, I invite comment and correction on this point.

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What gets measured gets managed.
This proverb, widely attributed to Peter Drucker, presents a tough question in the context of a company’s legal budget:Measure what, exactly?The cost-plus pricing method of the legal profession’s business model — charging the client company according to hours billed — offers the following answer:You should measure the number of hours that the attorneys decided to take in doing a particular job.This total — according to the view prevailing in 2019 — will tell you what a lawyer’s work product is worth to the client company.
Which calls to mind another proverb, offered by Seth Godin earlier this week, in a different context:“… Measuring the wrong thing is worse than measuring nothing at all.”According to the measure given to client companies by most lawyers — and accepted by the majority of such client companies — a contract that took 20 hours to complete is worth twice as much as one that took 10 hours.

Most business leaders — accepting this time-the-attorney-chose-to-expend measure — manage their legal spending accordingly.

Which brings to mind the experience of Patrick Lamb, who, along with Nicole Auerbach, founded Valorem Law Group (ElevateNext) — one of a tiny few elite law firms who never bill by the hour — in a June 20, 2018 presentation:

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In Part 1 of this two-part post I wrote that the conventional business law firm does not compete on the terms of service — does not adhere to management disciplines — that best serve client companies:

  1. Know what the price will be before you agree to pay it.
  2. Don’t accept assignment of two lawyers to do the work of one.
  3. Every lawyer your company pays should be fully qualified to do the work you pay them for; don’t pay apprentice-type junior lawyers for their on-the-job training.
  4. Avoid labor-intensive use of lawyers on routine tasks. Automate what can be done by artificial intelligence and other tech-enabled solutions;

And low rates were not among the terms of service I emphasized:

“Picking the ‘low cost provider’ when choosing your company’s lawyers is dumb.”

What’s a good first step towards these better terms of service — towards your lawyers adhering to the same management disciplines you require of every other function in the business — other than legal?

Get your company the terms of service — insist on basic management disciplines — in increments. Start somewhere.

Let’s say that federal income tax is a problem area for your company:

  • You can look for a boutique law firm that’s focuses on tax;
  • You can check out an accounting firm for the tax advice you need; or
  • You can seek out an individual lawyer who practices within a conventional law firm — but retain solely that lawyer — avoid the “cast of thousands” that conventional firms try to add on.

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Competition creates the value that the customer gets. There’s no substitute for it.

Take a look at this morning’s Wall Street Journal (subscription required):

“Charles Schwab, Fidelity Escalate Brokerage Price War”.

Featuring a picture’s-worth-a-thousand-words chart showing Schwab’s average commission per trade going from $12 in 2015 down to a little more than $7 — along with similar moves over the same time frame by TD Ameritrade and E*Trade.

Here’s the kicker:

“Schwab kicked off the latest round of price cuts with an announcement Tuesday morning that it would double the number of ETFs [exchange-traded funds] that can be bought and sold at no cost on its platform. Fidelity followed within the hour saying its platform would likewise expand its commission-free lineup to include more than 500 ETFs.”

“Fidelity followed within the hour.”

Not so the marketplace for lawyers’ services to companies.

I am not saying that you should pick lawyers based on price. Picking the “low cost provider” when choosing your company’s lawyers is dumb.

What I am saying:

A company should be able to expect that its outside lawyers will compete based on non-price terms of service that meet basic management disciplines that owners and managers require in every other part of the business — other than legal. 

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So wrote English lawyer David Allen Green in the Financial Times the other day to conclude his op-ed on how to cut legal costs:

“The best way for a business to manage legal costs is to be clear about what it wants from lawyers and to force them to be clear about what they offer ….

“… Technology can only help so much. To manage costs directly needs a change in attitude as well as new hardware or software ….

“Legal technology is not primitive magic. It can have a beneficial effect on legal costs only if the will is there. Precision, plainness and purpose are more important ….

My goal for my readers and my clients is the same as Mr. Allen’s for his readers and clients: Clarity of thought on exactly what business owners and managers need from their lawyers — and specific guidance on how they can get it.

This English commercial lawyer urges business people to get control over their legal costs by getting clarity of thought about what they actually need from their attorneys. To make this point he underscores what’s unclear to most business clients about their lawyers.

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Collaboration — on a consistent basis at least — calls for more than good intentions. Real teamwork is promoted — or it’s discouraged — by the way we pay people for their work.   

In her “What Makes Minnesota’s Mayo Clinic Different?”, financial journalist Maggie Mahar interviewed one of its physicians, Dr. Marc Patterson:

“You may have heard that at Mayo, doctors collaborate. But did you know that after their first five years all physicians within a single department are paid the same salary?

” … ‘Most could earn substantially more in private fee-for-service practice’, he adds.

“’It doesn’t matter how much revenue you bring in,’ Patterson explains, ‘or how many procedures you do. We’re all salaried staff—paid equally. This is very good for collegiality and people working together,‘ he adds.

Part 2 of this series described the Mayo Clinic’s teamwork approach to medicine. Mayo Clinic insiders describe this use of salaries rather than fee-for-service or other rewards for revenue generation as the foundation of teamwork medicine. Dr. Larry Jameson, executive vice-president of the University of Pennsylvania Health System, in a recent Knowledge@Wharton issue, stated that this use of salary to pay physicians removes, “potentially perverse incentives that are based on volume“.

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In Part 1 I described how the Mayo Clinic simultaneously achieved both the highest clinical standards and robust new efficiencies in its heart surgery department.

In looking to the Mayo Clinic for ideas on how to better manage the work that lawyers do for our businesses, I’d like to look in this Part 2 at one of that organization’s hallmarks:

Teamwork medicine rather than a star-performer focus.

 

Warren Buffett has long used the word “moat” to describe a company’s competitive advantage. In his annual letter to Berkshire Hathaway shareholders for 2007, Warren Buffett cited teamwork medicine — as contrasted with individual superstar doctors — as the key to the Mayo Clinic’s appeal to patients:

” … If a business requires a superstar to produce great results, the business itself cannot be deemed great. A medical partnership led by your area’s premier brain surgeon may enjoy outsized and growing earnings, but that tells little about its future. The partnership’s moat will go when the surgeon goes. You can count, though, on the moat of the Mayo Clinic to endure, even though you can’t name its CEO.”

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Last year the Wall Street Journal recounted how — eight years earlier — the Mayo Clinic’s heart surgeons had asked for two more operating rooms to meet skyrocketing demand.

“No” – replied the Mayo Clinic’s CEO — himself a physician.

Not only did he say “No” — CEO Dr. John Noseworthy then asked heart surgeons at what is probably the number one-rated hospital system in the world to redesign every aspect of their work.

For at least 20% in cost cuts.

Clinic-wide, Mayo has reported $900 million in savings over the past five years from such re-engineering projects.

And eight years after that request the Mayo Clinic’s heart surgeons got half of what they’d asked for — just one additional operating room.

Eight years later.

Meanwhile, over in the business legal sector, aggregate spending never goes down (here and here).

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I’m back from a hiatus in my blogging after two months of traveling back East on family medical and elder care duties.

This blog, like my law practice, remains focused on a dilemma faced by business owners and executives:

How to manage legal and regulatory exposure where your attorneys (outside firms and in-house counsel alike) offer the specialized expertise in law that you need — but insert waste into their charges and staffing practices — and make little effort to prevent liability before it happens.

I first really understood this problem only after I was invited by a corporate client to leave the practice of law to be general manager of a division.

Litigation and regulatory demands soar. A hostile legal climate requires the highest standards of legal analysis and representation — with harsh consequences if you get it wrong.

Meanwhile attorneys’ fees and in-house legal budgets refuse to go down (see here and here). Ten days ago I received this promotion from a legal budgeting consultancy:

As you prepare next year’s [legal] budget, think beyond ‘last year plus five percent‘.”

Such a low bar on cost control and management no longer surprises me.

Because I’ve worked on both sides of the lawyer / client table.

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