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:
- Who is responsible for performing the various tasks involved in the matter, and what information does that person need to do the work?
- 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?
- Who needs to be consulted before a decision is made or an activity commenced?
- 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, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.