At The

Where General Counsel and Law Firms Connect

Wishin’ and Hopin’ … and Sittin’ on Your Hands

Posted in Legal Department Management

heads-in-the-sandWhat if you invented a better mousetrap, but the world didn’t beat a path to your door? What if you developed a promising new medicine for a troubling condition, but when the doctor prescribed it, the patient refused to take it, simply sticking it in the desk drawer while continuing to complain about the malady?

At the very least, you’d lament lost opportunities.  At worst, your disillusionment and cynicism would drive you to check out of Frustration Hotel and repair to the nearest solo-occupancy desert island.  And so it is with many of us trying to improve the current state of the legal profession.

What If the Paradigm Doesn’t Shift?

Recently Stephanie Kimbro, a respected, gifted and innovative thought leader in the legal profession, wrote an utterly discouraged and discouraging blog post in which she threw in the towel:

I have written, researched, co-founded, created, evangelized, volunteered, taught and counseled lawyers and others in the legal profession…I was originally motivated by the idea that I could make an impact on the legal profession, educate lawyers to use technology to improve the delivery of legal services, and help increase access to justice…After fighting uphill battles and still seeing the pace of adoption and attitude change go at a snail’s pace, I’ve decided to stop trying.

The issue here is not simply the tragic loss of Ms. Kimbro’s wisdom and insights, the loss of a committed resource to the legal profession.  The bigger problem is the legal profession’s denial of profession-threatening  economic paradigm shifts and its resolute resistance to innovations, technologies and methodologies that could make legal service more effective, more efficient, and, above all, less costly.

In the face of forces, factors and developments that pundits told us would fundamentally alter – for the better – the law firm-client relationship and the modus operandi of legal service delivery, a profession still ruled by the nattering nabobs of negativism (Google it) continues with its head stuck firmly…in a state of denial. The sleeping giant simply will not wake up.

Who Is to Blame?

The malady is confined neither to lawyers in law firms nor lawyers working in-house.  All too many still sit passively as momentous events and forces threaten to steamroll them.  There are innovative law firm leaders who are attempting to lead, but the rank and file simply are not following. Most law firm lawyers still swear that the billable hour – which equates value conferred with the amount of time spent delivering service – will have to be pried from their cold, dead hands.  And game-changing technology?  If a new software tool requires more than two key punches, fuhgeddaboudit.

Still, when it comes to assigning responsibility for antediluvian legal business practices, we must cast the lion’s share of the blame on the client – on in-house counsel responsible for selecting, managing and, if need be, imposing discipline on outside counsel.  Law firms’ resistance to change can be understood, if not forgiven, because they are simply clinging to an historical economic and bargaining imbalance that long gave them the upper hand and made them a lot of money.

Oh, Poor Pitiful Me

Harder to fathom is the lethargy of in-house counsel. Sulking on the other side of that wall between firms and clients (a wall that many optimists like ourselves hoped could be demolished by improved techniques for law firm-client collaboration and communication), the in-house folks continue to wail and rend their garments in response to the draconian cost pressures they are experiencing, all the while proceeding to do nothing about it except demand discounted billing rates from their outside counsel (a stratagem shown to play well with the execs in the C-suite, but produce absolutely zero reduction in overall legal costs).

William Henderson, a professor at the University of Indiana’s Maurer School of Law and a pioneer in the rapidly evolving discipline of Legal Project Management, recently simply could not contain his astonishment at the inability and unwillingness of in-house counsel to exercise the negotiating leverage that the global financial crisis has bestowed upon them: “I overestimated the ability of in-house lawyers to effectively use their purchasing power in their own long term interests.”

It’s All a Matter of Will

As we see it, this problem basically is a matter of will —and will not:  1) In-house counsel lack the will to compel beneficial changes. 2) Law firms will not change.  Oh, they would if enough important clients imposed sufficient disincentives to their inflated billing practices and  inefficient, hidebound service delivery methods.

But clients can’t…or won’t…or don’t know how.  As a result,  a variety of proven innovations – including requiring accurate budgeting, alternative fee arrangements, using e-billing for data mining firm billing practices,  RFPs with real pricing teeth, Legal Project Management,  Legal Process Improvement, Legal Process Outsourcing, integrated budgeting and project management software,  to name but a few – have failed to gain traction and enjoy wide acceptance.  For the moment, it appears to us as if the Luddites are winning.  Ms. Kimbro’s frustration is understandable.

In an email stream attendant to the 2015 annual conference of the Association of Corporate Counsel, consultant Susan Hackett, former General Counsel of the ACC, tweeted about “VMWare’s wish for firms to stop charging as if every matter is one of first impression; stop charging to re-invent the wheel.” When I responded that “the solution is for clients to decide and reinforce what they WILL pay, instead of making the same time-worn complaint,” one in-house counsel (and I trust he was just being sarcastic) responded,

I wish the lawyers whose huge bills I keep paying without question would suddenly start charging me less without me asking.”

When Pigs Fly

Oh, sure, that’s gonna happen (just beware of all those flying pigs). Dusty Springfield once sang a pop ballad called “Wishin and Hopin’,” the refrain of which was that “wishin’ and hopin’ and thinkin’ and prayin’, dreamin’ every night of his charms, won’t get you into his arms.”  In other words, to get what you want, you have to take some action and create meaningful incentives in order to compel needed change. For in-house counsel, it really is time to stop wishin’ and start taking action.

One would think that today’s economic imperatives and drastic budgetary complaints would impel in-house counsel to exercise their newly-acquired leverage.  So far, sadly, inertia is winning out over pain.


© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Strategic Pricing: Creating Conditions to Succeed

Posted in Law Firm Profits



The difference between pricing legal work the way law firms have always done it and strategic pricing is simple: The former looks at the price tag from the law firm’s point of view, focusing on revenue and profitability.  The latter focuses not on how much clients can be convinced to pay, but on perceived bang for the buck, that is, how the client looks at value in the context of it overall business. 


The Plan, Boss, The Plan!

Every year, most law firms undertake a strategic planning process, and every year their top three goals are the same:

  1. Generate more revenue
  2. Become more profitable
  3. Make certain we have (or go get) the right talent to achieve items 1, and 2.

If you read further into the strategic plan summary that every partner parks in a bottom desk drawer, somewhere waaaaay down the list of firm objectives you may find some vague reference to measuring client satisfaction or client performance management.

These plans – wish lists, really –  tend to be perennial exercises in futility: they neither serve as practical roadmaps for lawyer behavior nor provide practical steps for revenue-enhancement, increased profitability and sophisticated talent management.  As a result, they serve as poor foundations for internal pricing practices.

The Tendency Toward Navel Staring

Unfortunately, all too often law firms treat pricing as an inwardly-oriented activity that generates a price-point that then is imposed on the client. This fosters a mindset that asks only, what will the traffic bear?  Today this mindset is not working.

Every law firm managing partner will tell you that it is becoming progressively harder to land work – new work or repeat business — in today’s competitive marketplace.  Fierce competition for a piece of an essentially fixed pie has triggered an all-hands-on-deck approach to business development. No more trichotomy between finders, minders and grinders.   Today, every partner must go beyond being a profitable individual contributor.  To avoid being marginalized or “made available to the market,” he or she must also be a successful rainmaker and a mini-P&L center.

And even putting all the troops on the front line is not maintaining – much less growing – the revenue stream. Despite their yearly plan to make more money, today many law firms are struggling to stay even: 35% of large law firms’ revenues are declining.

It’s surprising that more firms don’t consider an obvious truism: if clients are not satisfied – if they don’t think their interests are being given top priority by outside counsel – goals 1 and 2, above, are unattainable; clients will take their work and money elsewhere.  As for goal 3, merely having a lot of skilled bodies on the bus will not automatically realize the firm’s financial goals – not unless the clients feel they have received fair value for the cost of services and continue to engage that talent.

This intense emphasis on BD means that most law firm’s strategic plans look through the wrong end of the telescope, concentrating on sending more feet out on the street to beat more bucks out of the bushes. What should be happening is that pricing, revenue and profitability should be looked at through a broader lens: a shift in focus toward a client-centric view of the legal world in which alignment with client goals is Priority One, Job One, and Metric One.

Client-Centric Thinking

In an era where law firms no longer call all the shots in the law firm-client relationship and where bargaining leverage has shifted to the client, law firms’ cards-held-close-to-the-vest orientation does not foster client satisfaction or trust. In negotiations, an adversarial backbeat persists, the client constantly worrying, are we going to be paying too much for this outcome?

On the other hand, strategic pricing, which is built on a detailed inquiry into how the client defines value, can become the keystone for a relationship where the client feels that the costs relate fairly and efficiently to his needs.

Instead of asking, “How much money do we want to take in this year?” and “What rates and pricing structures are necessary to hit our numbers?” law firms should be asking “What can we do to more fully understand not just our clients legal needs, but also their business needs?” That question answered, firms should then ask themselves, “How can we meet those needs more consistently, efficiently, and predictably?”

Framing the Strategic Context

Before the firm fires off a pricing proposal, its lawyers need to find out what the client really wants and expects from the work they are considering  sending  to the firm.  Unless a lawyer is performing true commodity work, where each matter is exactly like the next and the desired outcomes are identical, the firm’s pricing experts must first ask the client some key questions to create a strategic context for the legal work:

  • What are the client’s primary goals – the key deliverables — for this matter? What constitutes a win from the client’s point of view? What are the stakes?
  • If these goals are achieved, what benefit will that provide the client?
  • What budget do they have in mind? (And be clear: clients always have a budget number in mind.)
  • What criteria do they use to evaluate outside counsel?
  • As members of the in-house legal team, how are they evaluated for how well they manage outside counsel and outside legal spend?

These framing questions are entry-points for further nuts-and-bolts pricing discussions. The client’s answers to these threshold inquiries will, in turn, shape and direct further questions that lead to accurate and comprehensive understanding of the engagement.

Now It’s Numbers Time

It is only when  a lawyer fully understands the full sweep of client goals and priorities that strategic pricing can begin.  That is one reason why simply pulling a budget from a prior matter off the shelf so often leads to disaster.

For example, if an earlier budget was formulated around the goal of resolving a dispute as rapidly as possible, that budget might be heavily front-end loaded with partner time to bring an early-stage full-court-press to bear.  If, on the other hand, the goal of a new matter is to put the brakes on a matter, drag it out, and wear the other side down, the budget naturally will look substantially different.  Bear in mind too that there may be many client voices and interests to be considered:  Lawyers make want to make law and establish precedents, whereas business unit heads who are footing the tab may want to minimize outside legal spend at all costs. Different goals have markedly different budgetary implications. If the lawyer doing the pricing has no idea what the client’s goals are, the budget is likely to be an unrealistic estimate, bad fit, or recipe for overruns down the road.

It is no accident that the Association of Corporate Counsel, in creating their suggested Outside Counsel Scorecard, listed the following service quality criteria for outside counsel (listed in order of importance):

  1. Understood Client Goals
  2. Legal Expertise
  3. Efficiency
  4. Responsiveness
  5. Predictive Accuracy
  6. Effectiveness

Note that understanding the client’s goals is listed first. That understanding is the starting point for having firm lawyers  select the right team, craft the right budget, and achieve an effective (for the client!) resolution of a matter. All other desiderata flow from there.

If firms want to achieve their financial goals, they must support true strategic pricing by incentivizing lawyers to focus on the value they can provide to clients — not just the hourly rates du jour.  That does not mean tickets to ball games or fancy dinners or sending newsletters.  It means talking with clients in meaningful ways – day in and day out, not just when a fee estimate is being prepared — about their business contexts and their goals for the work they are outsourcing to firms. When clients are truly the first priority, the conditions for law firm financial success fall right into line.

© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Five Critical Questions Every Client Should Ask Law Firms About Budgets

Posted in Legal Department Management

imagesAlthough dramatic changes in law’s economic landscape have conferred far greater bargaining leverage and purchasing power on clients, in budget discussions with outside law firms, many in-house counsel just aren’t asking the right questions. Clients simply cannot optimize budget planning and management without  knowing the answers to these five questions:

  1. Has the Budget Process Included Input from Primary Client Stakeholders?

Going beyond negotiations among lawyers on the law firm and client side, the budget must reflect input from client constituents who have “skin in the game.”  This is especially important where a client business unit is paying for the legal services even though the company legal department is assigning the work to outside counsel.  What may seem important (or acceptable in cost) to in-house counsel may not have the same level of acceptance by line management and business group “clients.”

  1. Does the Law Firm Have Appropriate and Adequate Resources to Deliver the Work Described in the Budget?

Many clients take the competency of outside counsel as a given. But there may be gaps in the capabilities even of well-respected firms, in terms both of subject matter expertise and “person power.” Partners in law firms are ambitious people, and in today’s competitive environment, there are times when the “promise” of services evidenced in the budget exceeds the firm’s “power” to deliver them.  That may mean, for example, that associates assigned to certain matters have insufficient knowledge and experience, which can lead to considerably more partner time than was contemplated by the original budget.

Another common resource allocation issue is law firm turnover.  For example, a particular practice group may have 15 – 20% annual turnover of associates (not uncommon), which leads to a constant and expensive (in terms of delays and costs) “churn” of the team working on a client matter.  The client is entitled to understand how the law firm will select and manage the team in order to stay within budget and achieve the client’s goals.

  1. Does the Budget Reflect Risk Management as well as Just Getting Tasks Done?

A good budget should include both a thorough exploration of client goals and a clear-eyed assessment of legal risks.  The budget should identify potential risks and unexpected events, determine the likelihood of their occurrence, and evaluate the anticipated financial impact of each risk to the client.

  1. Does the Budget Include Legal Work That Is Not Essential to the Client Goals for the Matter?

Law firm lawyers often have a hard time distinguishing between fundamental and incidental legal work, between what must be done to reach the client’s goals and turning over every rock along the path. Historically, firms have been driven to take every step, conduct all research, look at every case, and explore every rabbit hole in order to deliver legal services – and to keep the billing clock running, as well.  That may be appropriate in some matters, but more often exhaustive lawyering just is not needed.  And in today’s cost-constrained legal environment, clients view “overlawyering” as a cardinal sin.

  1. Does the Budget Include a Mechanism for Effective Communication and Keeping Key Client Stakeholders Appropriately Informed of Matter Status?

Budgets are not just about numbers; they’re also about when and how those numbers are communicated to the client. Excellent communication takes time, and clients may have specific needs about how and when they need status updates.

If the client needs reports in certain formats, wants reports to include cost and risk projections, or wants outside counsel to participate in weekly telephone check-ins, the budget should include line items for the needed communication. By including the communication as a separate budget item, the clients can assure themselves that their outside counsel are focusing on their specific needs and that there won’t be complaints (and requests for budget changes) about how much time updates are taking.

© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Manterruption III: Reader Responses & Connecting the Dots

Posted in Legal Project Management

connectthedotsIn several recent At the Intersection posts, we commented on some important social research discussing men’s pervasive tendency to interrupt women in group meetings or settings where the power stakes were high (“manterruption”) and to appropriate women’s ideas as their own (“bropropriation”).  We did not conduct this social research; we just reported on it. Yet these posts triggered a torrent of response, some of which was gratifying to us and some of which was pretty bewildering, given that it came from  a group supposedly known for its commitment to rules of law and principles of fairness.

You Got That Right

First, we want to express our appreciation to the many lawyers – both female and male – who wrote to thank us for shining a light on a very common and significant problem that all too often gets swept under the rug. We heard numerous war stories and horror stories, examples of oppression and suppression that basically said, “yeah, the researchers are right on the money: women’s professional leverage, leadership and advancement really are obstructed by their inability to get fair and respectful air time.”  We heard from women in both law firms and legal departments, as well as from women who had left the legal profession because of their inability to be heard and get traction among dominance-seeking male colleagues.  One typical example:

I would like to send your article on “Are You a Manterrupter?” to the group of young women I mentor.  And I’ve spent the last two days dealing with a man who keeps mansplaining to me.  It’s exhausting.

One of the most poignant of these responses came not from a woman, but from a male Practice Group Leader in a 500+ lawyer firm (his comments have been slightly edited to preserve confidentiality):

My daughter, who is an associate in another firm, sent me the link to your posts and asked me to read them because she said they captured exactly what women – including her – commonly experienced at her firm. My reaction to the posts was, “Nah, this can’t be.  I guess this is the new hot topic for feminists to spout off about.” However, I did start observing the gender interactions in my firm more carefully.  At the next few practice group meetings, I kept tabs on the interactions and interruptions on the edge of my legal pad. The results of my ad hoc research were sobering, because they revealed levels of ‘manterruption’ and ‘bropropriation’ that were far worse than those the social service researchers noted in their interviews.

Stifle Yourself, Edith

By way of counterpoint, we also received responses awash in heated denial asserting, in effect, that we were slandering men, that either manterruption doesn’t happen, doesn’t happen much, or is simply a cost of doing business in a competitive, power-oriented professional environment (you know, the old “if you can’t stand the heat, get out of the kitchen” argument). Should we have been surprised that articles about how often women are told to sit down and shut up were greeted with catcalls suggesting that the articles’ authors should sit down and shut up?

The “protesteth too much” tone of these responses suggests to us that they were probably written by inveterate manterrupters, rather than by lawyers with superior emotional intelligence, keen active listening skills, and the predilection to respect other people.  In pleadings parlance, many of these responders issued a General Denial.  We do not expect the resesarch or our comments to change their minds.

And Most Surprising of All…

We were prepared to be told that we might be wrong about the whole manterrupter controversy.  We were not prepared to be attacked personally, to be told that we lacked the standing and objectivity to write about compromised communication between genders.

“You guys are supposed to be experts on Legal Project Management, not diversity and gender issues,” came one response. “What qualifies you to play social scientist? Why don’t you just stick to your own knitting?” Another wrote, “When did you become such feminists?”

Okay, Here’s the Connection

For those folks who feel we should silo our expertise and our opinions, let us connect the dots between effective communication needed in Legal Project Management (LPM) with the research. We are indeed staunch advocates of LPM as a discipline that sharpens legal service delivery and aligns law firm-client relationships to produce better collaboration and better results for all concerned.  And, we have the opportunity to see many, many dysfunctional legal service delivery teams.  The research of Professor Adams, Dr. Reeves and others piqued our interest because it spoke to one of the dysfunctions we have observed repeatedly: crippled communication.  When you silence, interrupt or appropriate ideas from team members, you destroy team communication.  When there is a disproportionate impact on female lawyers, it is not surprising to see their early departures from law firms.

As we so often assert, LPM is not simply a mechanistic system of procedures, methods and metrics.  Done well, it also is a powerful communication engine, a common sense and intensely human approach to breaking down the walls that have traditionally put clients and their outside counsel at odds. In our minds, the word “relationship” is a functional description, not a touchy-feely talisman.

A fundamental axiom in LPM is “all of the players must be kept in the loop all of the time.”  In other words, communication is crucial – candid, complete, and timely communication.  And, oh, yeah: respectful and receptive, too.   Any set of biases and attitudes that systematically stifles communication is profoundly counterproductive and erects a barrier to efficiency and productivity.  It is vitally important to get sand out of the gears, wherever and however it may sift in; there is no benefit to driving efficiency into some areas of legal service delivery while tolerating inefficiency in others.

© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

ValoremNext: A Better Mousetrap…And Beyond

Posted in Legal Department Management

ValoremNextTwo lawyers well known for their innovation, and perhaps for their iconoclasm, are going beyond trying to invent a better mousetrap. Today they trotted out the design for a new mouse.

Jeff Carr and Pat Lamb have long collaborated on efforts to reshape the law firm-legal department relationship, and in so doing have not hesitated to reimagine both law firms and legal departments. Jeff was a well-known change catalyst during his 13-year tenure as General Counsel of FMC Technologies, Inc. [FMCT] (during which he reduced legal department spend by over 40% even as FMCT’s revenues increased fourfold), and Pat (a former BigLaw partner) is a founding member of and a driving force in the now 7-year old Chicago-based Valorem Law Group, a New Model litigation firm noted for providing clients with new approaches to defining, pricing and delivering value in legal service delivery.

Thought Leaders Thinking Alike

Today they announced that Carr, who retired from leading FMCT’s legal department in 2014, will join Valorem, an exciting but unsurprising development inasmuch as Valorem and FMCT have enjoyed a long and effective law firm-client relationship. While developing a singularly effective working collaboration over the years,  Carr and Lamb established themselves throughout the legal world as thought leaders both in what they call “Engaged Law,” which emphasizes addressing business problems more than simply selling traditional legal services, and in “Next Law,” which emphasizes preventing various kinds of legal problems before they occur.

Carr and Lamb share an intense focus on value as perceived by the client, a perspective championed by Carr in his work on the ACC Value Challenge while a member of the Association of Corporate Counsel’s board. At the same time, Lamb became a fierce proponent for value-based billing in the form of alternative fee arrangements for high-stakes litigation that were not predicated on any form of hourly billing. His passion led him to pen two books: Alternative Fee Arrangements: Value Fees and the Changing Legal Market and Alternative Fees for Litigators and Their Clients. His intense client focus is apparent both in his blog, In Search Of Perfect Client Service, and his regular ABA Journal column, The New Normal.

A New Mouse Trap

But Carr is not joining Valorem as a litigator or litigation manager.  Instead, he will head up a distinct service platform called ValoremNext, in which he will advise legal departments in preventing the kinds of problems that both wallop outside legal spend and adversely affect their companies’ business operations. Many of these problems focus on litigation and its enormous costs, but Carr emphasizes that ValoremNext will also advise clients on avoiding issues relating to corporate contracting and business operations, as well as best practices for legal departments.

We asked Lamb if it was not counterintuitive, if not potentially suicidal, for a litigation firm to offer sophisticated litigation prevention services.  “Look,” said Lamb, “let’s be clear: there will always be litigation.  The plaintiff’s bar is not going away, and there will always be unavoidable breakdowns in business transactions. We can hold our own in the litigation marketplace, especially with our cost-effective approach to value-based billing and more efficient management of litigation.”

 Redefining the Mouse

“But beyond that,” Lamb says, “ we’re convinced that our long term interests lie in showing clients not just that we are skilled litigators, but that we are wise collaborators in meeting the needs of both the legal department and the business as a whole.  ValoremNext’s strategic goal is to foster the kind of relationships we enjoyed with FMCT over the years – relationships that start with the client, end with the client, and have the client deeply involved in every stage in between. Who can do that better than Jeff Carr?”

Carr concurs that the prevention platform makes solid strategic sense and represents a fundamentally different way of looking at legal service delivery. “The best legal problems are the ones you don’t have. We are going to provide the kind of common sense and managerial tools that are common in the business world, but not so common in the parallel universe of ‘Lawland.’ In working with legal departments, ValoremNext will emphasize that in-house counsel should not operate as lawyers – not legal content and process people; that’s what outside counsel are for. In-house people instead should be business counselors who help clients achieve business success. ”

Points of Entry

“So what will ValoremNext consulting look like?” we asked. “Where will it start and what will it do?” Having long preached that a crucial part of legal project management is rigorous post-project review,  we nodded in agreement when Carr suggested that with many clients he would work first to establish a disciplined After Action Review Process. “Only through this process can a legal department identify the root causes that give rise to problems, as well as defining what has worked well in the past.”

Carr expects to find a second point of entry in legal departments, especially small or relatively budget-constrained ones, that lack the resources, tools or savvy to implement best practices and engineer intra-departmental changes in roles and attitudes. “Our role will not be to lecture legal departments on theory, but to get familiar with their potential issues at the ground level, whether they be environmental, products liability, contracts, regulatory or problems caused by others outside the company. Think of it as ‘hands-on thought leadership.’”


Lamb and Carr acknowledge that it’s too early to tell the directions in which ValoremNext will evolve.  “Any assistance we provide obviously will build on our legal department experience and judgment,” says Carr, “but that may come to include many roles, including ‘Board Whisperer,’ ‘GC Whisperer,’ ‘GC in a Box, or even legal outsourcing resource for certain kinds of hands-on work.

“Two principles impacting legal departments are clear to us, however. First, in the pressure-cooker of providing more with less, more keeps getting more and less (particularly outside legal spend) will keep getting less. While promoting efficiency and consistency will always be a good sell, the step change in cost reduction comes from prevention of problems to handle in the first place.  Second, as the legal profession becomes increasingly client-driven, it will become increasingly value driven. That is our brand, and it is fertile territory for a First Mover.”

© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Manterruption, Part II: The Quest for a Cure

Posted in Law firm practices

Don't InterruptIn our last post we discussed the widespread tendency of men to interrupt women in settings where the power stakes were high (manterruption) and their tendency to appropriate women’s comments and ideas as their own (bropropriation).

This Really Does Matter

We emphasized that this is not a minor impediment to women’s career advancement. As Dr. Arin Reeves states, “We cannot talk about women’s retention, advancement and leadership in the workplace without exploring what happens when women are constantly interrupted.  If women cannot even be heard, can they truly advance into leadership?”  We will leave to another day the question of whether asymmetrical communication correlates directly with the abysmal level of women partners and law firm leaders. But there is no doubt that women are seriously frustrated and disadvantaged by this all-too-common phenomenon.

What’s This Really All About?

Interruption may have many causes or represent a combination of ingredients. Some experts consider a lot of interrupting to be a conversational habit, a byproduct of men historically talking more and women being regarded as having less to say. Or maybe in part it’s a geographic or cultural artifact, not necessarily dismissive or unfriendly. Famed linguistics guru Deborah Tannen has pointed out, for example, that fast-talking New Yorkers interpret any pause as a sign that the speaker has finished.  Others say interruption may actually signal intimacy, kind of an ‘I interrupt because we’re such close friends’ theory.

But our concern should be with Intrusive Interruption intended to perpetuate power disparity. Since most men can sincerely deny malicious intent, what triggers this interruptive urge? Some experts suggest that the problem may not simply be a power thing, although certainly “interruptions can be used to display or gain dominance,” as George Washington University linguist Adrienne Hancock has said. At the more conscious level, interruption may be a behavioral artifact of the whole men-are-from-Mars-and-women-are-from-Venus thing. Communication scholar Stanley Deetz notes than men may be more likely to see conversation as “a competitive game, while women see discussions as being collaborative, hence expecting and giving space for interruption.”

Many researchers, especially experts in diversity, fasten firmly on the unconscious bias explanation, seeing interruption as a culturally learned response that provides the interrupter with some unexpressed but desirable advantage. Interestingly and ironically, research also has shown that when people believe they are not being biased, they frequently exhibit behaviors that are in fact more biased; whereas people who are willing to examine their behaviors for unintentional bias, become less and less biased.  Put differently, people who believe they are not sexist or racist are more likely to make biased decisions because they are not examining their decisions for bias.

How About Some Behavior Mod?

Since we work mostly in the world of law and lawyers, frankly we like the response of one high-powered female litigator: “Let’s cut out all the apologist BS about intentions and attitudes,” she says. “For both men and women, we need to focus on behavior change – on what must be expected, accepted, or rejected in a professional workplace.”

Behavior mod focuses on creating powerful incentives for appropriate social behavior (and disincentives for bad acts). Asking people to simply be something — more virtuous or less destructive – is, in our view, a totally ineffectual tactic. Grown people do not willingly undertake personality transplants, and men will not become less aggressive and self-aggrandizing simply because some “touchy-feely bleeding heart type” asks them to.

Similarly, we see little benefit from bland injunctions like “men need to talk less and listen more” or that women at the table need to “lean in” more, while men should somehow magically become more comfortable “leaning back.”  In our view, conversational parity is a matter of learned behaviors, that is, techniques that can either be learned and reinforced by incentives or extinguished by some form of pain.

In A list of practical things we can do to reduce gender bias at work, Elba Pareja-Gallagher cited a list of constructive actions – targeted to men – and developed by Terry Howard and Claire Brown and posted in Catalyst’s MARC (men advocating real change) site. Frankly, a few of these seem a bit naive and unrealistic: “Do not interrupt,”  “Take turns talking,” and (our favorite) “Incorporate more nonverbal behaviors that facilitate interpersonal communication, support, and interest.”  Oh yeah, that’s easy.

But other items on the list seem like perfectly practical action tactics: “Invite women to meetings that usually are ‘inner sanctum’ only.” “Introduce women into your network.” “Send women to represent the company at a conference.” “Reach out to women to discuss their career goals, instead of waiting for them to come to you.”

Researcher Sheryl Sandberg (see Post I in this series) has some eminently practical suggestions for slowing the cycle where men assert conversational dominance, women hold back, relinquish credit, let their ideas be poached or attributed to males…and then eventually shut down, become more passive and less creative, feel less engaged, and experience anxiety because they fear that somehow they are at fault.  Some of her ideas (listed below with a few added ingredients of our own):

For Everyone:

  1. Get Honest: Admit that unconscious bias and communication role stereotyping exists in both men and women. That is, set the stage for addressing the issue and rejecting the flawed communications status quo. We all need to own up to the problem.
  1. Ban Bad Behavior: Create a “no asshole” rule in your conversational circle or cohort (now sometimes called a “No-Kanye” rule) that explicitly addresses interruption. The idea is that where an explicitly articulated rule is being broken, the group has the authority to call foul. The group sanction is against the behavior, not the communicator’s intent.
  1. Intervene actively. Stop interrupters in the moment. Tap the table. Hold up your hands in a “stop!” gesture. Nudge interrupters or put your hand on their arm.  Better still, speak up: “Wait, please let her finish” or “Hold it, I really want to hear what Donna is saying.”  Rehearse some good interrupt-the-interrupter phrases – and have them locked and loaded.
  1. Applaud: As soon as a woman makes an insightful comment, jump in: “Yes! Good idea, Sandra.” (Don’t forgot to say her name; name recognition goes with respect)
  1. Support Virtue: Praise and support clients, companies, teams and groups that are led strongly by women. Highlight exemplars – and let them know you are supporting them publicly.

For Women in Particular:

  1. Enlist a Male Buddy: Find a sympathetic male who realizes how you’re being shut out and make a clandestine pact: ask him to backstop you in meetings – nodding, agreeing, and calling out male interrupters as needed.
  1. Defend Other Women: Women are shockingly unsupportive of other women publicly. Stand up for female colleagues; if they are going to label a woman as “difficult” or “aggressive,” make them label you that way, too. Let’s #staynoisy like Liz Dolan and identify situations when bias rears its head.
  1. Practice Power Postures: This does not mean acting like John Wayne. It means to study and practice gestures – “leaning in,” standing to speak (and standing firmly on both legs when you do), gesturing with your palms down, steepling your hands, keeping your hands and arms within your body frame – that convey confidence and authority. Develop a “hold that thought” hand gesture to stop interrupters before they gain momentum. This initially may be uncomfortable, but as confident-appearing trial lawyers would say, “fake it ‘til you make it.”
  1. Eschew Conditional Statements: Dispense with “Maybe I’m wrong, but…” or “Should we consider this?” Don’t use questions to make statements; make statements.  Minimize questions designed only to signal how consensus-oriented you are.
  1. Find Your Voice: Don’t try to talk like a man. Talk like a strong woman: No uptalk (interrogatory inflection).  Use short sentences. Practice a clear drop in pitch at the end of a thought to signal you’re done thinking/speaking (the Brits call this a “full stop). Give inspiring speeches to yourself in the car (including practicing being angry or offended). Join Toastmasters or take a public speaking course if your voice is soft or your manner demure.

Bonus Tip:

Name the Frame:  Politely but firmly call out manterrupters and bropropriators as soon as they trespass, emphasizing their behavior but not impugning their intentions: “Gary, I’m being cut short here. Please let me complete my thought.” “Mel, I’m glad you like my idea. You’ve paraphrased my previous comments very succinctly.”

BTW, yelling STFU!, no matter how gratifying, is probably not a successful behavior modification tactic.


© 2015, Edge International US, LLC. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

FLASH UPDATE: No Seat at the Table

Posted in Law firm practices

Life Imitates Blog

3d Office chair in spotlightOnly a few days ago we posted a blog post, Are You a Manterrupter?, in which we discussed how unconscious gender biases of men may compromise leadership communication and result in female colleagues being marginalized, shut out, interrupted and generally frustrated in the exercise of senior-level professional responsibility.  A second, related post about how to address the impact of unconscious bias is scheduled to be posted next week.

Wow, talk about timing: today’s headlines threw the spotlight on some extraordinary true-life breaking news. Fox International Channel’s CMO Liz Dolan published a scathing article entitled “Gender Bias Forced Me to Quit Quiksilver’s Board.”  It turns out that Quiksilver, an action sports and apparel company, had completely excluded board member Dolan from the decision-making process that led to firing its CEO. Dolan first learned about the change in management while on an airplane, when she opened an email containing documents for a clandestine board meeting taking place while she was in the air. The quickie board meeting was to ratify what was already a done deal following 10 days of secret conversations among the other – and entirely male – board members.

As former CMO of Nike and the OWN channel and hardly a junior-varsity talent, Dolan was proud to be one of the few women on the board of a publicly-traded company. She had earned her spurs as a heavy-hitter, and she had passed board interview muster as someone with the chops to make tough decisions.  Yet she was totally cut out of the loop of a 10-day discussion about terminating the CEO, who had been a senior executive colleague of Dolan’s when they both earlier worked at Nike. When Dolan left the board on May 28th in what lawyers call a “noisy resignation” (meaning that the company has to release the resignation letter), she said:

“I was given many explanations, but I think it boils down to a single answer: unconscious bias. And what I learned is that even when a woman earns a seat at the table, the men can put you in a soundproof booth.” (emphasis added, and much deserved)

“Because I had a previous professional relationship with the (now former) CEO at Nike, the board assumed they knew how I would have voted based on the biased assumption that I’d vote to keep my ‘friend.’ Because that’s what girls do, right? They make emotional decisions about friends instead of strategic decisions based on business facts. Girls can’t keep a secret. Girls are too emotional. Girls can’t make tough calls. And, thank goodness, girls won’t speak out when we marginalize them.”

This exemplar of male thinking, arrogance and dominance – which seems to us more evidence of conscious bias than unconscious bias — is bound to be embarrassing for Quiksilver. But they’ll survive, right?  They’ll duck their heads, decline comment, and elect a replacement board member.

How much do you bet it won’t be a woman?


© 2015, Edge International US, LLC. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Are You a Manterrupter? – Part I

Posted in Law firm practices

STOPThis is Doug, and I’m going to be flying the airplane in this post. Pam is standing by me, as usual contributing a wealth of valuable and timely information, but she’s going to hold her tongue. Why? Because research proves the likelihood that if she tried to make her ideas heard, she would learn the perils of “speaking while female,” as researcher Sheryl  Sandberg and Wharton professor  Adam Grant put it in a recent New York Times op-ed piece. The odds are that Pam would either be manterrupted, mansplained and bropropiated. If she held her ground and insisted on air time she would likely be labeled as “difficult” or “aggressive.” Either way, in the battle for leverage among powerful players, all too often women end up as losers.

On the other hand, as a guy, my provocations are more likely to earn full faith and credit from the professional power elite, just because I said ‘em.

Whazzat You Say?

“Manterruption,” “mansplaining” and “bropropriation” are neologisms that spell bad news both for women trying to make the most of their seat at the table and for men claiming to be equal opportunity communicators. All these terms represent characteristics of male communication – whether intentional or the result of unconscious biases and attitudes – used as displays of dominance and power:

  • Manterrupting: When a man interrupts a woman frequently and unnecessarily.
  • Intrusive Interrupting: When a person intentionally or unintentionally usurps a speakers’ turn at talk in order to derail their ability to complete their thought and make their point.
  • Mansplaining: When a man interrupts a woman to explain something to her she knows more about than he does, often including putting a “manly” spin on a “soft” or feminine mode of expression.
  • Bropropriating: When a man usurps a woman’s idea – often with the support of other men — and takes credit for it.

This new vocabulary is deliberately sarcastic, not simply to provoke confrontation, but to highlight the frustration that interruptive behavior causes competent, creative and articulate women.  Through these terms, women are trying to sound a wake-up call.  Can men listen?  Can they change?

As Dr. Arin Reeves, author of One Size Never Fits All (ABA 2014), puts it, “We cannot talk about women’s retention, advancement and leadership in the workplace without exploring what happens when women are constantly interrupted.  If women cannot even be heard, can they truly advance into leadership?”  A female senior partner at a large law firm put a blunter point on it: “Men’s communication styles are killing women’s careers.”

Interruptive Variations

Of course, not all interruption is disruptive or destructive.  Interruption can facilitate communication by helping to clarify (“Oh, I get it! You mean…”), amplify (“Yeah, yeah, yeah, and furthermore…”) or ratify (“Right! Right!).  Linguists speak of “back-channel listening responses” and “affiliative overlaps.” But a growing body of empirical research shows that men are more likely to interrupt to make their opinions heard, and women are more likely to interrupt to ask questions and seek clarification.

But let’s be clear: manterrupting is about power-tripping, marginalizing, demeaning or dismissing.  It turns collaboration into competition – competition in which women are put at peril. “We’ve seen it happen again and again,” Sandberg and Grant write. “When a woman speaks in a professional setting, she walks a tightrope. Either she’s barely heard, or she’s judged as too aggressive.  When a man says virtually the same thing, heads nod in appreciation of his fine idea.”

Survey Says…

A variety of research shows that when it comes to workplace communication, women speak less, are interrupted more, and have their ideas criticized and nit-picked more than men. Male executives who speak more often than their peers are considered more competent (by 10%), while female executives who speak up are considered less so (14% less, in fact, according to research by Yale psychologist Victoria Brescoll).

Recent research by Dr. Reeves probed the question: Is there a gender difference in meetings, conferences and/or panel discussions…especially at the higher visibility leadership levels, in who is interrupted more, who interrupts more, who is more likely to interrupt whom, who is more likely to realize the interruption behaviors, and how interruptions are perceived and managed?

The answer? Oh, yeah. For example, in 2014, empirical linguist Kieran Snyder observed interactions in meetings where at least four people were communicating.  She found that men interrupted at twice the rate than women did and were three times more likely to interrupt women as to interrupt other men (and when women did interrupt, they interrupted other women 87% of the time).

Reeves listened to 41 hours of meetings, calls and panels where at least two women were communicating in a group of at least five people. She noted 859 interruptions, an average of almost 30 per group interaction.  582 of the interruptions were by men, and men proved far more likely to interrupt women than men. “An overwhelming majority (89+%) of men’s interruptions of women were intrusive, but only 42% of men’s interruptions of men were intrusive. Less than 20% of women’s interruptions of men or women were intrusive.”

Interestingly, Reeves notes that when a powerful woman is formally in charge of a meeting, she will tend to circle back to a manterrupted woman and place the microphone back in her hands. On the other hand, if a man is in charge of the meeting, interruptions of women are not only tolerated, they are perpetuated: the interrupted woman is seldom given a second chance to complete her thought. Sadly, women who attempt self-help by asserting their right to be heard often are “spoken to after the meeting” and warned that they are perceived as being “difficult” or “not team players.”

In addition, researchers find that when men grab the mike from women, they don’t give it back: the interruption becomes a usurpation of power, not simply a status gesture.  They tend to keep the floor, spin the communication toward mansplanation, or cede the floor to other men.  Once women are interrupted, they stay interrupted.  Any wonder that they are frustrated?

Oh, Not Me

Right now, a lot of you men are pleading innocent. To paraphrase the wonderful and repeated punch line from the long-running stage show Defending the Caveman, you are screaming out, “I am not an asshole!”

It may be that you do not consciously intend to be an asshole, but the evidence shows that the impact of your behavior is indistinguishable from if it were intentional. Reeves interviewed both men and women who had participated in the meetings, calls and plenaries she observed, and most of the men reported being unaware either of interrupting anyone or having been interrupted. Most of their interruptions were not conscious or deliberate.

Most likely, this obliviousness – if not outright denial – stems from unconscious biases about the relative power and authority of men and women, as well as about the competitive substrate that underpins much of professional and executive existence. In an incident that went gleefully viral (at least from the perspective of those who love to see the mighty brought low), Google executive chairman Eric Schmidt and Steve Jobs biographer Walter Isaacson appeared at the 2015 South by Southwest Festival to discuss how to attract, develop and advance more women in the technology sector.  The two men repeatedly interrupted co-panelist Megan Smith, the Chief Technology Officer for the United States (and a former Google executive) as she tried to talk about the need for women to have a greater voice in technology.

In the audience Q&A, Judith Williams, head of Google’s global diversity and talent management program, asked, “Given that unconscious bias research tells us that women are interrupted a lot more than men, I’m wondering if you are aware that you have interrupted Megan many more times.” The audience burst into applause.

Megan Smith’s answer? “It’s an interesting thing, unconscious bias. It’s something we all have and something we really have to debug.”

Neither Schmidt nor Isaacson answered the question.

Next Post: Is there a cure for manterruption?

© 2015, Edge International US, LLC. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Curing Communication Babel, Part II

Posted in Legal Department Management, Legal Project Management


An Only Slightly Disguised True Story


Legal Department Head of Litigation:

“Sam, I swear I’m about to kill you guys, or at least fire you. You keep sending us these urgent demands for decisions and information with totally inadequate lead time. We get settlement requests, notices of hearings, pleadings and documents for review, and requests for interrogatory information with only a couple of days for turnaround.

“Do you have any idea how long it takes to go up and down the decision ladder around here?  You turn every routine communication into a pressure-prompted emergency. We’re sick and tired of getting the bum’s rush.”

Client Relationship Partner [clearly taken aback]:

“Laura, I had no idea we were causing you so much distress, but we will fix this communication problem, like right now. How much time do you need for turnaround?”

Legal Department Head of Litigation:

“For us, it’s usually pretty straightforward, Sam.

For pleadings, we gotta see ‘em 1 week in advance of the filing date.

For reviewing important letters, 1 week in advance of sending.

For settlement authority, we need 2 weeks at our end after we receive your case report, unless it’s a major matter; figure longer—3 weeks — for high-stakes decisions.

We need to see notices of mediation and arbitration at least 30 days in advance of the proceedings date.

For rogs and deps, we need to talk case-by-case, but you have to stop assuming that we all can jump through hoops at the snap of your fingers.  Our clock is not like your clock.”

The moral here is clear:  if the parties had taken the time to discuss communication pathways and timeframes early on, they could have avoided a lot of later pressure, stress and hard feelings in the law firm-client relationship.

Who’s to blame?  Everybody. The partner should have asked. The client should have taken the partner through a communications reality check at the get-go.  But nobody communicated, and now everybody suffers.

And On the Other Hand

Think not that imperious demands are the sole province of law firms marching to the beat of their own communication drums. Recently, a BigLaw partner told us that, “we were in the midst of an incredibly intense period of research and negotiation in a complicated dispute. Everybody on our team was working flat-out.  Out of the blue, the client emails me and says he needs an immediate report on the status of the budget, all WIP, and a forecast for the next 90 days.  For us, we were already stretched and this caused a major fire drill for my team.”

So what was the story here? Was the client just power trippin’ and jerking the law firm’s chain? Not a bit. It turns out that the client law department is required to report quarterly to upper management on all current legal expenses, and to forecast out for the next quarter.

This is a rather common occurrence in many legal departments, but the client had never informed its outside counsel of this recurring internal communications requirement.  The result was that the law firm was neither forewarned nor forearmed, a communications lapse that created real headaches for the firm in the midst of a major piece of litigation.

In Our Last Exciting Episode…

In our last post, we described how poor communication between law firm lawyers and in-house lawyers and general counsel contributes to misunderstandings, dropped balls, inefficiency, unpredictability, acrimony, and a generally adversarial cloud over the law firm-client relationship. Each side blames the other.

But stop: where does blame and shame get us? How does it improve things? How can the players light a collaborative candle rather than continually cursing the darkness? To do this, everybody has to take two basic steps: 1) resolve to communicate better because lousy communication is so costly, even in “minor” matters; and 2) consciously focus on up-front communication planning.

All those loops, all those levels!

As a first step, everyone has to stop being so sloppy when thinking and talking about client-law firm communication.  For example, consider this common phrase, uttered often in the throes of law firm damage control: “We’re gonna have to call the client.”

Hold it: just who is the client? Is the client the business or organization that has engaged the firm?  Is it that company’s CEO or CFO – they certainly call a lot of shots.  Is it a non-lawyer business unit head?  The general counsel?  The senior in-house lawyer handling this kind of matter or serving as liaison on this matter?  A lower-level member of the legal department charged with compiling the information the law firm needs to respond to interrogatories?

When lawyers speak of law firm-client communications, the picture that usually comes to mind has the firm’s client relationship partner exchanging views and information with (fairly rarely) the general counsel or, more often, with some senior level in-house lawyer.

However, as the diagram at the head of this post suggests, there’s a lot of communications pathways both within client and legal department teams and across the wall to the other guys. Just look at all the different types and levels of information flow, at all the people who are involved in decision-making in some way. Yet in the day-to-day pressures of practicing law, little thought is given to the best way to plan, control and conduct communication.  Everyone tends to make assumptions – all too frequently untested assumptions – about other lawyers’ level of understanding, sophistication and authority.  All too frequently, this leads people to overstep, underreport, and head off in the wrong direction.

Da plan, Boss, da plan!

In Legal Project Management (LPM) workshops, we routinely ask how many of the experienced partners in the room have ever prepared even a basic communications plan as part of overall project planning for a major matter.  We know what we are going to see: not a single raised hand.  If we ask how many participants have even seen a communications plan, maybe one or two hands will go up.  They generally describe a communications plan that is triggered by the client, as part of their project management.

If there’s one thing that LPM reveals, it’s that lawyers are loath to plan.  Too time-consuming.  Too…administrative. They prefer a “ready, fire, aim!” approach in which they charge into action, patching up problems and re-jiggering erroneous assumptions down the road.

Although creating detailed communications plans for significant or complex matters – plans that include input from both law firm lawyers and in-house counsel – probably is about as appealing as rubbing ground glass in your eyes, maybe we can cajole you into creating at least a simple template, basic checklist or discussion guide.

How simple?  As simple as practically possible, because complex plans take time both to create and monitor.  And let’s face it: the majority of law firm-client communications do not relate to huge engagements with scores of contributors and boatloads of moving parts.  They involve the simpler, quicker interactions of a couple of lawyers who have worked with each other a lot, know each other well, and have done this sort of thing often before.

Do such workaday communications really warrant protracted scoping and planning?  Obviously not. But even simple communications warrant some basic framing and reality-testing.  Lawyers working in familiar territory are even more prone to making untested assumptions and therefore getting sucker-punched by inarticulate communication than lawyers project-managing sophisticated matters. Familiarity breeds contempt, as they say.

For simple communications or complex, the following guidelines will help improve the overall quality of communication.

Try it, you’ll like it

When thinking about who should be in the communications loop and what form of information is appropriate for each stakeholder, non-lawyer project managers often trot out the acronym RACI.  RACI reminds you that frequently a lot of different players want to get their hands on a decision in one way or another.  RACI reminds you to ask four communications framing questions:

  1. Who is responsible for performing the various tasks involved in the matter, and what information does that person need to do the work?
  2. Who is accountable for (i.e., who “owns”) the matter and what type/level of information does that person need to stay on top of things?
  3. Who needs to be consulted before a decision is made or an activity commenced?
  4. Who else needs to be at least informed of where and how things are going?

Regardless of which side of the law firm-client wall you’re on, for complicated multi-party communications, you’ll do well to create some kind of BCP – that’s a “Basic Communication Protocol“ – which may be no more than a set of scribbled notes describing:

  • WHO: The names and titles of everyone who needs to be somewhere in the communications loop (even lower level worker bees).
  • WHY: The reasons and rationales for why each player is communicating with other players.
  • WHAT: The kinds of information that need to be shared, and what kind of response is required.
  • WHEN that information is best shared and when a response is needed.
  • HOW that information is best shared: email? Phone?  Written report? Meeting? (meetings are costly, but they actually go a long way toward minimizing communication babel)

The best way to end-run lawyers’ natural tendency to avoid discord and conflict is to minimize situations that trigger discord and conflict.  And the best way to avoid damage control mode is to think more seriously and respectfully about your modes, methods and style of communication – even for simple matters — at the outset.  A problem averted is not a problem.  Babel be damned.

© 2015, Edge International US, LLC. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Memo to In-House Counsel: Minimizing Communications Babel, Part I

Posted in Legal Department Management, Legal Project Management

HiResIf it did not depict so much dysfunction, the incessant mud-slinging between in-house counsel and law firm lawyers about abysmal communication would be almost laughable. Instead it reveals a continuing and unresolved component in the law firm-client relationship, a serious and costly barrier to effective collaboration.

Bad Communication:  Who’s to Blame?

For years, every client attitude survey has flagged “poor communication” as the number one gripe in-house counsel have about law firm service delivery.  Over and again, in-house folks report that outside counsel:

  • Are unresponsive
  • Aren’t attuned to client needs and priorities
  • Talk too much and listen too little
  • Communicate only when they want to
  • Focus on narrow legal issues and not broader client business issues
  • Don’t keep the client in the loop about changes in scope and pricing
  • Are slow to report problems, crises and busted budgets
  • Are reluctant to talk about budgets, billing and money in general

But, in-housers, you are not above reproach.  In the course of working for years to help align and untangle communications between in-house lawyers and outside counsel, we’ve heard constant complaints about shortcomings at your end. When the ball is dropped, the message garbled, the instructions vague or the expectations left unarticulated…all too frequently, law firms say, it’s your fault.

Shots to the Jaw

Specifically, here are the shots you frequently take from outside counsel:

  • You’re the ones who are unresponsive. You fail to respond timely to questions, requests for information and documents, and – particularly – demands for important decisions.
  • You’re unclear about how you define value. You’re vague about what goals and outcomes will define success for a particular matter or for you.
  • You don’t put enough time and effort to project scoping.
  • You’re not specific enough about timing, internal calendars, schedules and deadlines, and then you blame us when things aren’t done when you want them.
  • You aren’t particularly helpful when it comes to allocating roles, responsibilities and accountability between in-house lawyers and outside counsel. In addition, roles often seem to  change — without notice — when it comes time for the work to be done, with many tasks suddenly dropping on to our shoulders.
  • There’s a lot of communication Babel on your side of the wall: your legal staff, compliance people, business units and corporate management all weigh in with their own opinions, demands and political agendas. We not sure what or who to listen to.
  • Similarly, your organization’s decision-making loop is unclear and inconsistent. It’s hard for outside counsel to tell how long it will take for a decision to go up and back down the corporate chain of command.
  • You’re both conflict-averse and risk-averse. You often avoid or withdraw from those “hard conversations.” You often pull your punches, mask your impatience, and keep underperformers underinformed.
  • And finally, you often do not specify how you want to be communicated with: in what form, how frequently, about what content, in what detail. We remember the general counsel of a public financial services company once saying, “before you ask me out to lunch, first find out if I take lunch.”

Memo to In-house Counsel

It may surprise you to learn that law firm lawyers do not know that your hair is on fire.  They really don’t understand how busy you are, how many competing demands there are on your time, and they don’t know how often you are forced to communicate on the fly, make snap judgments, defer decisions, delegate and procrastinate.  They brand you as unresponsive because they think in-house life is calm, quiet and manageable, and that it ends each day at 5:00 PM.

As we’ll discuss in our next post, better communication planning is the way to transform the longstanding communication problems into more effective and more efficient communication solutions.

Grubby Money

Meanwhile, we need to reserve a special communication booby prize, on both sides, for discussions involving money – anything relating to rates, costs, pricing, budgets, and problems therewith.  As one lawyer in a Legal Project Management training workshop described many lawyers’ aversion to talking about bucks, “no one wants to talk about grubby money.”

The historical reluctance of outside counsel to talk money matters – rates, prices, costs and budgets – is well-established and frequently criticized.  But at a time when almost every general counsel reports draconian budget pressures and a pressing need to control outside legal spend, it is astonishing how coy in-house counsel can be about their budget expectations and constraints.

Frequently, their vagueness during scoping and pricing negotiations can make money matters sound like a guessing game to outside counsel, communicating, in effect,

I have a figure in mind, but I’m not going to tell you what it is.”

When we asked one assistant general counsel why she was not more candid and straightforward in budgeting discussions, she replied: “Simple.  The person who talks first about money usually loses.”  In other words, communication about money is inherently adversarial.

When a client does not articulate succinct and clear performance standards (including cost expectations), it makes it nearly impossible for outside counsel to monitor and manage matters to meet client expectations.

By way of example, partners often report that clients ask them for budgets, but that no one on the client side seems to care about them once a matter is underway.  They may even be required to update those budgets periodically, but it appears that the client is just ticking off some check-box (“Budget Update:  √”), and does not really care about the accuracy of the information.  What message does that send?

It’s far better, no matter how uncomfortable for the parties, to talk about money as well as about when, how, to whom and what should be communicated during a matter.

In the next post, we will address how to achieve clear communications.


© 2015, Edge International US, LLC. All rights reserved. No part of this article may be copied or reproduced without prior written approval.