Past actual outcomes should determine who your company chooses as litigation counsel. Jeff Carr breaks it down this way:
“Effectiveness — was customer objective not met, met, or exceeded?
“Efficiency — was actual below or above agreed budget?
“Experience — Customer’s [satisfaction] with team?”
The legal profession — both in-house and in law firms — tends to skip the nuts-and-bolts due diligence required to understand such effectiveness, efficiency, and customer experience. It defaults instead to a loose proxy for these specifics: law firm reputation.
This Matters to Your Business
The lazy substitute provided by law firm league tables poses two fatal deficiencies for the corporate Legal department trying to evaluate trial lawyers and other litigators.
First, there is no publicly available data on law firms’ (1) effectiveness, (2) efficiency, and (3) customer experience.
(For accuracy, this is not to say that there are no publicly available reports on litigation results of lawyers and law firms — but that information is available only on a fragmented basis. An emerging field called “legal analytics” offers partial information about specific lawyers or specific firms, for specific types of cases, in selected jurisdictions — but not an objective, complete picture of results specifying effectiveness / efficiency / client experience.)
Second, because there are no publicly available data on those three kinds of results at the law firm level, there is no fact-based means by which to test the firm-to-firm comparisons in law firm league tables.
Nevertheless, the legal profession’s conventional wisdom relies on such impressionistic considerations to judge litigation counsel. So that the company seeking trial attorneys and litigation counsel lacks specifics on which to base their decision.
The clearest model I’ve found for such evaluation is Jeff Carr’s “ACES” approach (“Alliance Counsel Engagement System”). The American Bar Association Journal summarized it this way:
” … The price is about the value of service, which he defines through the ‘three Es’: effectiveness, efficiency, and experience. In other words, did the objectives get met? Did the project get finished on time and at or under budget? And were the client’s needs met? …
“… Under his system, outside counsel may make anywhere between 80 to 120 percent of its agreed-to fees and expenses based on their efficiency. He says [as general counsel of the client company] that firms that did not want to agree to this approach … were welcome not to take his business.”
When it comes to evaluating attorneys’ proficiency, firsthand specifics are better than secondhand generalizations. Those firsthand specifics are best understood through the lens of client-lawyer agreements, whose terms are set by client and lawyer before performance begins, and whose performance results in monetary rewards — or penalties — known only after outcomes are known. Bear in mind, however, that this alternative to lawyers’ conventional wisdom remains very much a minority approach.