Ask and Ye Shall … Get More!

Friday, September 2, 2016 - 10:34

Unless You Ask bills itself as a “guide for law departments to get more from external relationships.” As such, it is an important addition to the lengthening shelf of self-help resources for in-house counsel (many offered up by consultants themselves eager to help). It is also an odd duck of a document – by turns a menu, checklist, conversation starter, jeremiad, marriage counselor, screed, shrink and opera buffa – all rolled into one.

The 84-page guide is the handiwork of primary author D. Casey Flaherty, former in-house counsel with Kia Motors America and associate with Holland & Knight, best known, at least to me, for his contributions to the popular “3 Geeks and a Law Blog.” He now consults with in-house departments and law firms on sourcing, process and tech, with an emphasis, as he puts it, on “fostering a structured dialogue between the two” (thus the marriage counseling element).

It is noteworthy that UYA is backed by the External Resources Interest Group of the Association of Corporate Counsel’s 18-month-old Legal Operations organization. That pumps serious credibility into the effort. Among the ops bigwigs contributing to the project are: Diana Barlow, AVP of Legal Ops for Voya Financial; Vincent Cordo, Jr., global sourcing officer with Shell Oil; Stephanie Corey, legal chief of staff at Flex (and cofounder of the Corporate Legal Operations Consortium, or CLOC); Kurt Grasinger, senior operations manager at March McClennan Companies; Aaron Katzel, president and CEO of the Legal Operations Company (AIG’s ops spinout); Lynette Lupia, director of legal operations, outside counsel management & administration at Abbvie; and Nicole Rahimzadeh, manager of legal operations with Abbott Laboratories.

Unless You Ask is a self-described exercise in planned obsolescence. “This is Version 1.0,” the authors say in a “coda” to their work (thus opera buffa). “It would be outstanding if you handed this Version 1.0 to someone five years in the future and their response was, ‘This is silly. Everybody already does these things, and so much more.’ ”

It’s easy to have a little fun with Unless You Ask – I can’t resist – but make no mistake: It’s a serious effort. As detailed here in our July-August issue, when it comes to changes in how legal services are shaped and delivered, corporate clients are from Mars and BigLaw firms are from Venus. No, wait. Even at 31,248,757 miles apart that’s too close. How about Mercury and 3,671,229,000 miles to poor, orphaned Pluto? That fits.

Anyway, they are talking past one another – when they are talking about service delivery at all. “The legal market has suffered because law departments and law firms have for too long refused to be explicit about what they expect from each other,” write Flaherty & Co., who are weary of false starts and empty gestures (thus jeremiad). “Clients are dissatisfied. Firms are confused. We need real conversations … ”

That’s what Unless You Ask is about – in-house counsel talking their way to deeper supplier relationships with outside counsel (thus conversation starter). As the title suggests, UYA puts the onus on the buyer to get beyond awkward, first-date small talk to meatier, data-driven discussions more likely to drive mutually fruitful, long-term relationships.

“Beating up the supplier is not the objective,” UYA cautions. “We want to encourage structured dialogue to arrive at sustainable, win-win initiatives.”

As a Lean Six Sigma Black Belt (look it up), Flaherty is very much a process guy. Forget about discounts, he says. They won’t go any further than an “attaboy” – or even a rolled-up newspaper across the snout – in changing the behavior of outside counsel too thick or stubborn to heel. Process, he says, is where it’s at if you’re looking for levers to drive the continuous improvement in-house counsel should be seeking.

“You are the urgency driver,” he says. “Stripped to its most basic, you should always be able to identify how your primary providers are measurably improving their delivery of legal services to you.” (Emphasis in original.)

I can’t do UYA justice in this space – you need to download it and binge-read it. Suffice to say, it stands out and above in a genre noteworthy for self-appointed pundits spinning out self-important platitudes, starting with its discussion of “value-plus services.” Despite all the talk of value, UYA says, outside counsel’s primary value is still domain expertise, which is often derided as the price of admission (but try getting into the big game without a ticket). But for savvy buyers, those willing to ask, there is complementary value available in the form of untapped resources that firms can muster to forge more holistic approaches to their role as founts of expertise. (It’s kind of like fracking to unleash tight oil – but without all the sturm, drang and mess.)

Casey & Co. list a bevy of possible asks (thus a menu): legal training (CLE), company training, support training, allied professionals, secondments, advice hotlines, updates/alerts, pro bono. Most of this, they admit, is familiar stuff, but UYA drills deeper, explains each ask, and offers pointers on how to get the most out of it.

The next section, “Value Enablement,” is especially good stuff. This is about the translation of amorphous legal insights into concrete service deliverables such as a buy-sell agreement or a motion to dismiss. Here we hit the legal ops sweet spot as Casey dons his black belt and lets his inner process geek emerge.

“The value is in the insight,” he says. “But much of the labor – and the cost and the waste – is bound up in the translation. A law firm that excels at legal insights does not necessarily excel at legal service delivery.”

For clients eager for continuous and measurable improvement in their supplier relationships – not just with law firms but with all manner of managed-service providers – the ACC ops crew offers a step-by-step map to “value enablement”:

  • Ask the right questions to set the stage for fruitful conversations.
  • Interview counsel about how they buttress expertise with process and technology.
  • Engage in structured dialogue aimed not at fixing everything but at improving something.

From there, the authors dish up questions and suggestions in eight specific areas: knowledge management, process and project management, data/analytics, paper intensity, expert systems, tech training, staffing, and firm-defined categories (thus a checklist).

The firm-defined piece is especially interesting. The idea is to anticipate what outside counsel will think when you start asking for proof of value. Most firms, the UYA team believes, will wonder whether their clients will even give a damn. Clients vote with their feet (and wallets), and if the same competitors get the work no matter what a firm does, it will all be for naught. “The trouble with incentives is that they work,” UYA says. “Paying attention to and rewarding how firms are augmenting legal expertise with process and technology is one of the roles that clients need to play in the legal market.”

There’s much more, including a substantial appendix that digs deeper into the categories discussed above. Before getting to that, however, UYA turns to a deceptively simple question: Why?

Unfortunately, we have to endure a short detour into some shopworn lawyer personality stereotyping and psychobabble – lawyers are the most skeptical people on the planet blah, blah, blah (thus the shrink element) – before getting back to the meat of the matter – a useful list of FAQs designed to address the why and head off the change averse:

  • Shouldn’t we be focused on finding great lawyers? (Not really.)
  • Should we really have to ask firms to do things they should already be doing? (Well, duh.)
  • How will our firms respond? (Try it and see.)
  • Don’t we need to get our own house in order first? (No!)
  • Aren’t we too busy to run someone else’s business? (Running someone else’s business is your business.)
  • Isn’t this a road to incremental improvement? (Hey, it’s better than nothing.)
  • Shouldn’t we just demand deeper discounts? (Sure, if you want to play a loser’s game.)

There’s more, but it’s the last question that’s most interesting: “Why is this suddenly so important?”

UYA responds with a paean to the legal ops function. And why not? This is, after all, their party. Look at the size, sophistication and stature of corporate law departments, they say. And look at the proliferation of us legal ops types. We’re emblematic of the profound changes at work. That makes the time ripe to put ideas into action.

“Legal operations,” they write, “is an important part of the story of how the balance of power has shifted to law departments and what law departments are poised to do with that power.”

UYA tackles the question of what to do with that power – and how to do it – in a substantial and passionate effort designed to help clients give voice to their growing clout. As the ops gang puts it (emphasis very much in the original):

You should be asking for more and be more specific in what you ask for.”

Indeed, a screed.