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The Point

Part I of this series concluded:

” … In most companies, corporate Legal is a business function without a strategy … without objectives and metrics by which to assess its effectiveness .”

In other words, most corporate Legal functions neglect to target specific results for which executive management can hold them accountable. And they lack measures against which to assess their results (other than generalized cost complaints).

Nevertheless, most corporate Legal functions have what amounts to an implicit, default strategy. As the article cited in Part I (“The One Thing You Need to Know About Managing Functions“, Roger L. Martin & Jennifer Riel, Harvard Business Review, July – August 2019) put it:

“You have a strategy whether you like it or not … The goal may be implicit … The choices may have emerged without discussion or exploration. The actions may be ineffectual in achieving the goal. But the strategy exists nonetheless.”

So the typical corporate Legal function’s implicit, default strategy actually amounts to a set of tactics:

  1. Respond to events ad hoc; don’t commit Legal to achieve particular outcomes, and
  2. When a legal need arises, simply assign lawyers to whatever task needs doing.

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The Point

In most companies, corporate Legal is a business function without a strategy.

Executive management needs to fix this. Because neither attorneys in law firms nor those in-house have defined what is — and is not — within Legal’s scope of responsibility. And, apart from generalized concern about cost, business leadership lacks agreed measures by which this function’s results can be evaluated.

Unaccountable to explicit performance metrics, Legal lacks a meaningful foundation on which to craft its strategy as a corporate function. (“The One Thing You Need to Know About Managing Functions“, Roger L. Martin & Jennifer Riel, Harvard Business Review, July – August 2019).

So Legal’s prevailing mode of operation, with minor exceptions, is reactive. With attorneys both in law firms and in-house making ad hoc responses to client events. Leaving the business enterprise without objectives and metrics by which to assess Legal’s effectiveness as a corporate function. Continue reading

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The Point

So reports The American Lawyer / Law.com (subscription).

In recent years corporate Legal departments have loudly announced that operational excellence is their new goal. Promising speed of service delivery, lower cost, and enhanced accuracy in work product as results.

Headlines like the one above raise doubts about the seriousness, or at least the staying power, of corporate Legal’s commitment to operational excellence. Continue reading

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The Point

This week a strategy consultant sought my advice about engaging counsel on the legal implications of a project. I explained that her project was in an area where governing law was relatively straightforward. Though attorneys need to do lots of expensive work to address some situations, this project was not one of them.

I cautioned that too many firms incentivize lawyers into framing business issues so as to insert more complexity, more complication, and more uncertainty than the situation warrants. And then bill accordingly. So she needed to carefully select trustworthy, client-focused counsel.

From my email later that day:

” … In connection with my apologies earlier for possible cynicism about having to carefully manage one’s lawyers, the linked tweet from an attorney and technology expert I admire (Alex Su) illustrates why I am so cautious … The law can be an honorable profession, but clients need to be realistic about the perverse incentives their lawyers are working under.” Continue reading

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The Point

Why don’t law firms use a software-enabled platform to automate transaction processes that attorneys typically carry out themselves? For less cost, with more accuracy, and faster than those attorneys can do manually?

Last month Gartner analyst Ron Friedmann put the question this way:

“Over the last 5-7 years, we’ve seen the rise of deal platforms. Have these helped address this problem? I thought this class of LegalTech would sweep the market because it can reduce coordination. But my sense is it has not. Is this read right? If so, what went wrong?” Continue reading

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The Point

1. An attorney’s duty to maintain client communications as confidential is one of the central pillars of legal ethics*. For obvious reasons, this is vital to the well being of a business enterprise.

2. Based on my years as a practicing lawyer — and at other times as a business executive — I believe that government agencies sometimes threaten this important value.

3. It’s up to legal counsel, in law firms and in-house, to zealously defend a corporation’s right to confidentiality. Continue reading

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The Point

Why approach the contracting function as a form of business process management? Two reasons.

First, efficient contracting drives — and ad hoc contracting impedes — cash flow. By making the order-to-cash cycle fast or slow.

Second, efficient contracting enables quick action — and ad hoc contracting creates roadblocks — in any operation where the company collaborates with, or marshals the resources of, a party outside of the business.

That’s from a business process management vantage point, at least. But there’s another approach to contracting: that of lawyers.

From law school, law firm experience, and in-house counsel practice, their view of contracting centers on a request to an attorney, writing a document, deliberation between business person and attorney on terms, then negotiating with the third party about terms, signing the paperwork, and then putting the contract is a file of some kind.

This ad hoc sequence is not a “business process”. And, of course, it’s not efficient at all. Continue reading

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The Point

The above from a headline in Corporate Counsel (subscription required) last week.

Nathan Cemenska is an attorney who is Director of Legal Operation and Industry Insights at Wolters Kluwer ELM solutions. In a report issued earlier this month, LegalVIEW Insights volume 2023-1: Law firm rate increases, he contends that intimidation confines corporate Legal’s negotiation efforts to “where it matters least”:

“In smaller, less expensive firms where both rate increases and the underlying rate tend to be lower, limiting opportunities for savings …

“As long as corporate law departments continue to stand in awe of their largest firms and steer away from the application of any serious pressure to rates at the biggest firms, hourly rates at those firms will compound year over year and become outrageous by any definition.” Continue reading

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The Point

Earlier this year I summarized Casey Flaherty’s exhaustive study of what’s overwhelming corporate Legal, and why it matters: “For most companies, the legal system’s demands on corporate Legal exceed that business function’s capabilities to respond … So some tasks vital to a company’s legal safety go begging, exposing those companies to potentially catastrophic litigation and regulatory exposure.”

Richard Susskind, British lawyer and Oxford PhD in computer science, and the world’s most cited author on the future of legal services, offered his solution to this dilemma in a presentation this week, as he released the 3rd edition of his classic Tomorrow’s Lawyers:

In order to do “more for less”, the corporate Legal function needs to “rethink” how it serves the business,  and then “design the processes and systems” to increase capabilities at scale — rather than simply rely on “more lawyers”.

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The Point

Consider federal district court Judge Vince Chhabria’s observation in ordering Meta (Facebook) and its law firm, Gibson Dunn, to pay almost $1 million to their opponents in In re Facebook Inc. on February 9.

“This case is an example of a wealthy client (Facebook) and its high-powered law firm (Gibson Dunn) using delay, misdirection, and frivolous arguments to make litigation unfairly difficult and expensive for their opponents. Unfortunately, this sort of conduct is not uncommon in our court system.”

However disapproving judges may be on the rare occasions when they take time to look into it, the legal profession tolerates — often encourages — scorched-earth courtroom tactics. Even among America’s most celebrated companies and leading law firms, litigation too often imposes catastrophically wasteful costs on a business before any judgment has been rendered. Continue reading

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