Posted by: johnocunningham | October 29, 2014

How Chief Legal Officers View Arbitration vs. Litigation

Trial advocates in private legal practice who are seeking to serve prospects and clients in more and better ways should be attuned to how their targets view alternative legal avenues for dispute resolution.

This month’s edition of Today’s General Counsel features an article on arbitration trends that neatly summarizes the views of General Counsel who were recently surveyed on the subject of litigation vs. arbitration.

Advocates in private practice would be well-advised to understand the thinking of GCs, who see a few compelling reasons to arbitrate a case (other than a contractual requirement to do so):

  • 38 percent of respondents ranked the need for confidentiality as one of the top 3 reasons to choose arbitration;
  • 38 percent of respondents also ranked “lower costs” as one of the top reasons to resort to arbitration; and
  • 31 percent saw the benefits of more limited discovery (whether by agreement or by rule of a forum).

What are the leading reasons that GCs favor litigation over arbitration?

  • 66 percent see greater difficulty in appealing an adverse decision (so a close case might tilt them toward litigation);
  • 43 percent have a problem with a lack of requirements to follow certain legal rules that courts observe; and
  • 38 percent are concerned about the neutrality of the third party arbiter.

Even if outside counsel disagrees with any of these perceptions, they are wise to understand the perceptions or their clients or prospects, and to communicate with them accordingly. Today’s General Counsel often provides interesting glimpses into the thinking of GCs in their publications.

Note: Today’s General Counsel is not and never has been one of my clients, but I regularly read their publications, which often present something of value to GCs and those who want to understand them.

Posted by: johnocunningham | October 23, 2014

Best Blog Posts of September: “Being You” in Your Business

This is my twenty-second post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I often peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

For the month of September 2014, I have chosen to highlight “The Struggles of Being ‘You’ in Your Business” by Mandy Edwards of ME marketing services.

Mandy hits on a great topic for small business owners and entrepreneurial professionals who have to engage with others continuously to maintain their business development.

She notes how easy it is to worry about being offensive or not being taken seriously if a little bit of human personality shines through the business veneer, something lawyers and accountants seem to obsess over, clothed in solid armor that prevents the sharing of anything personal or vulnerable that could build a lasting human connection with a client.

She also quotes the late Bernard Baruch, a successful investor and philanthropist, who said: “Be who you are and say what you feel because those who mind don’t matter, and those who matter don’t mind.”

That I think is solid advice, based on my own interviews with successful rainmakers, who generally seem comfortable in their own skin and enthused about authentic human engagement, despite the risks of stepping outside of the suit of armor.

This reminds me a bit of Oprah’s repeated advice to young entrepreneurs and aspiring artists: “Do what you love, be authentically you, and the money will follow.” She ought to know – she is worth an estimated $3 billion.

Posted by: johnocunningham | October 20, 2014

ABA Warms to Affordable Online Legal Assistance

As Monica Bay noted in her “Game Change” column in the October issue of Law Technology News, ABA president William Hubbard is looking at new ways of extending affordable legal assistance to small businesses and self-employed commercial consumers through online avenues once snubbed by many leaders in the profession.

Bay reported in her column that the ABA and RocketLawyer.com are “teaming up to explore innovative solutions to a vexing legal paradox – the difficulty small businesses face finding affordable legal services at a time when many lawyers would welcome expanding professional opportunities.”

Currently, RocketLawyer offers legal consumers monthly flat fee membership or discounted annual plans that allow members to ask basic questions of “on call” lawyers via email or phone. Members can also download legal documents and forms prepared by lawyers, and they can hire lawyers with whom they have communicated or who they have researched in the RocketLawyer online directory.

Other competitors, such as LegalZoom, have offered similar services in the past, and they have periodically battled with state bars that have accused the online providers of engaging in the unauthorized practice of law. One state bar even tried to ban all self-help software and books sold by alternative legal providers.

But now the tide seems to be turning, perhaps because numerous surveys have shown that working class Americans cannot afford or simply will not purchase legal services offered in traditional office settings at traditionally high prices. The intervention of state legislatures in opposition to state bars, and the development in other countries of legislative broadening of alternative avenues for legal service offerings have probably clarified inevitable future trends as well. The 2007 Legal Services Act in the UK, and similar legislative developments in other countries portend further global deregulation of legal services.

The ABA should be lauded for its latest effort to find non-traditional ways of connecting potential clients to legal professionals at affordable prices. This makes a lot of sense at a time when the public is under-served despite the fact that roughly 25 percent of law school graduates are unemployed or underemployed. It is also the wave of the future.

 

Posted by: johnocunningham | October 15, 2014

Why Bad Writing Happens To Smart People

This little blog post was inspired by an article that appeared in the Wall Street Journal recently, entitled: “When Being Too Smart Ruins Writing.”

The column written by Harvard Professor Steven Pinker seemed to be tailor-made for lawyer-writers.

In it, Pinker explains that “the curse of knowledge is the single best explanation of why good people write bad prose.” He elaborates on that by noting that reputable authorities in their fields can simply skip over logical steps and clarifications in their writing because their professional acumen has them flying well above the ground on which most of us live.

I too have often noticed this phenomenon among brilliant lawyers when I am asked to review and edit their drafts of articles intended for publication in print or on the Web. At times, it appears that they are performing incantations or complex verbal calculus. But when I can divine the intended meaning and refine it with a little bit of supplemental research and intuition born of experience, I find that there is frequently a cogent and compelling message inside of their half-baked fortune cookie.

I also agree with Pinker that a good way to “exorcise the curse of knowledge” in your writing is to put the finished product down for a while (at least a full 24 hours) and then come back to it and read it with a mind that is now focused on another priority. If you can’t understand what you wrote the first time, that is the perfect precondition for making helpful and clarifying edits to your own work.

It is also very helpful to have critical colleagues review your work and tell you where they got lost or just plain disinterested.  As Pinker observes, this is what engineers term “closing the loop” or “beta-testing” the product. Peter Elbow, author of a number of works on writing, suggests the same approach with the inclusion of other writers in your “focus group” so that you get a writer-editor’s perspective.

As William Zinsser says in his book, “On Writing Well,” it is in “rewriting that the game is won or lost.” Thus, “rewriting is the essence of writing” and a fresh and critical eye – or eyes – can greatly improve the final product.

Posted by: johnocunningham | September 26, 2014

Linked-In for Lawyers

The American Bar Association published an article in 2012 about the importance of Linked-In for lawyers, noting that nearly 4 out of 5 business decision-makers look at a lawyer’s Linked-In profile before contacting them to discuss a new engagement.

Most lawyers now know that Linked-In is an important tool for connecting with potential clients and referral sources, but many are still not sure how to use this tool effectively.

One of the best and simplest summaries of “tips” for lawyers who want to master Linked-In, in my opinion, is Amy Campbell’s piece entitled, “Linked-In for Lawyers: Basics, Power Tips and Caveats.” There are many other articles on the topic that can be found on-line, but I think this one is a good starting point with plenty of actual screen shots of Linked-In to demonstrate the “how to” advice. When you go to Amy’s page via the link above, you have to click on “download this article” to see her 10 easy tips.

I also recommend for lawyers and legal marketers that they follow Linked-In CEO Jeff Weiner on Twitter to learn more about the platform. Jeff puts out some great tweets about Linked-In and social media in general.

 

Posted by: johnocunningham | September 19, 2014

Trends in Law Firm Value/Efficiency Initiatives

Consulting firm Altman Weil has released the results of its 2014 Law Firms in Transition Survey, highlighting some of the key initiatives that firms are undertaking to improve their efficiency, leveraging the value provided to clients per legal dollar spent.

The survey polled managing partners and chairs at more than 800 firms of 50 or more lawyers, obtaining responses from nearly 40 percent of firms and 42 percent of the largest 350 firms.

Among the interesting results from the survey are the following:

  • 61 percent of respondents are finding ways to use technology to replace human resources;
  • 60 percent are implementing knowledge management programs (for better storing, retrieval and sharing of knowledge, including but not limited to legal memos and opinions); and
  • 43 percent are offering project management training.

These are huge steps forward from where law firms were just a decade ago, and should help firms to retain clients that might otherwise be lost to lower cost alternative providers that continue to sprout up everywhere.

I was surprised, however, to discover that only 30 percent of respondents have embraced the re-engineering of work process (sometimes referred to as process improvement). Sophisticated corporate clients constantly obsess over process improvement to speed up delivery, enhance quality and reduce costs, and many that I have interviewed say that too many law firms have little or no established process for common tasks involving litigation, discovery, or transactional work.

In order to compete for clients successfully now, firms not only need to adopt process improvement, project management and technology enhancement programs, they need to track their improvements in delivery times and costs as a result of these programs. Firms also need to communicate the results of their programs, demonstrating how they can serve clients faster and more cost-effectively. They also need to communicate – to their clients and their employees – an institutional commitment to constant improvement in client service going forward. Failure to communicate results makes them invisible.

Posted by: johnocunningham | September 15, 2014

Law Firms Need to “Measure Up” to Competition – Literally

Corporate clients continue to ramp up their legal spending on “alternative providers” while cutting back on budgets for work farmed out to law firms. That is the conclusion drawn from recent studies by BTI Consulting Group and the Association of Corporate Counsel, as cited by Wall Street Journal writer Jennifer Smith in WSJ’s September 15 edition.

The Journal cites a BTI study determining that nearly 60 percent of larger companies are keeping more legal work in-house this year while budgeting $40.9 billion on in-house lawyers, a 22 percent increase since 2011.

Corporate clients are also hiring more experienced contract lawyers do crunch work, as needed, rather than paying lofty rates for junior lawyer work done at firms, and they are looking to alternative service companies for discrete tasks such as document review and due diligence, once performed by armies of young top-dollar associates at law firms.

This trend shows no signs of abating, and demonstrates that law firms must show how they are better than their contract provider competition. Of course, that means they must also figure out how to be better and how to measure their superiority.

While firms have long avoided the cumbersome task of mastering process improvement, project management and service measurement, failure to tackle those tasks now will prove to be suicidal in years to come.

Among the many metrics that a forward-looking and competitive law firm should be utilizing are the following:

  • How fast does the firm close transactions of different varieties (average closing times in mergers/acquisitions is down to 60 days now)
  • How often does the firm come in “under budget” on deals
  • What is the frequency of post-closing problems that result in material dollar expenditures (a firm that has close to zero percent can argue that their experienced foresight and proper initial handling of a deal means lower costs on the back-end)
  • What percentage of clients rank their satisfaction for the dollars spent at 9 or 10 on a scale of 1 to 10
  • What percentage of clients say they would recommend this firm to others (and actually do)
  • What percentage of clients say the law firm renders better “value” than alternative providers
  • What percentage of clients say the law firm renders better “value” than other firms

In the corporate world, there is an old saying that “What gets measured, gets done.” If you are not measuring value delivered or satisfaction produced, it is not getting done. If you want to manage it, you better measure it.

Then, you can benefit greatly from communicating the positive results using authentic numbers, instead of guesses and puffing. This has worked well for at least one highly successful and growing Massachusetts accounting firm, which displays on its website the fact that 97 percent of clients surveyed “strongly recommend” the firm to friends and acquaintances. See, for example, the website of Alexander, Aronson & Finning.

Posted by: johnocunningham | September 8, 2014

Best Blog Posts of August: Pose This Power Question To Your Clients

This is my 21st post in a series of monthly features that I have dubbed “Best of My Blog Roll.” The concept is simple – at the end of a month I often peruse my own blog roll (see that column on the right) for material created by other bloggers that I think is most worthy of sharing with others, and then I report on it here.

For the month of August 2014, I have chosen to highlight three blog posts, giving my first star to Nancy Myrland for her post on “One of the Most Important Questions You Can Ask Your Clients”

The recommended power question is elegantly simple: “What can I do to keep you as a client for the long haul?”

As the author points out, the inspiration for this question came from a CEO who asks the same power question of his employees in an employment-related context.

I would recommend at least one follow-up question for clients: “What can I do to become your service-provider of choice for more of your needs?”

For my readers, I also want to highlight an August post at Adam Smith, Esq. entitled, “Do You Love What You Do?”

This post highlights key findings cited in a Harvard Business Review article based on a performance study of 10,000 military leaders and their divisions. The most intriguing findings to me were about what you can do wrong as a leader to undermine performance.

The study found that the worst steps that leaders can take are the following:

1. Making everything about compensation and profit rather than vision and purpose.

2. Keeping a tight leash on people through micromanagement rather than giving them missions and problems to solve using their own creative judgment.

Finally, there is a third post that I found very useful last month on the subject of what makes a good headline. Larry Bodine’s Law Marketing Blog featured this gem entitled, “The Perfect Headline is Six Words Long.” This post breaks down the components of both good and bad headlines based on readers’ habits in response to headlines.

Posted by: johnocunningham | September 4, 2014

High-Tech Document Discovery: No Longer Optional For Law Firms

We live in an age where we are drowning in electronic data. Litigation holds, as well as preservation and production of data in litigation are fast becoming the number one headache for chief legal counsel in commercial companies. Just one terabyte of data on a server can mean scores of millions of pages to review.

According to a West Publishing report entitled “e-Discovery for Corporate Counsel,” 70 percent or more of the cost of discovery is now attributable solely to human review of documents for responsiveness and privilege. Furthermore, up to 90 percent of costs in any litigation matter can be tied directly to document review and discovery (see also: June 23, 2008 issue of Law Technology News).

These costs are ballooning and form the fastest growing part of most corporate counsel budgets.

As noted in a report by the Journal of the American Society for Information Sciences & Technology, there is also no way that dozens of human reviewers working on so many documents will sort and code them consistently and accurately based on their differing subjective judgments, experience levels, fatigue and other factors.

Thus, the biggest critical difference maker for law firms that want to demonstrate “value and efficiency” in litigation is technological expertise in systems that greatly speed up the e-discovery process and improve its accuracy, resulting in much lower litigation costs and far better litigation management.

Litigation firms and litigation departments can score big points with their clients by technologically solving the problem of sorting through mushroom clouds of data. They can also score more clients by tracking and communicating the reductions in costs and improvement in results from smarter use of technology.

There are numerous systems competing for the attention of litigators, and the purveyors of these systems are constantly offering free seminars on the subject of optimizing the interface of people, process and technology. For just one example, see the upcoming September 16 complimentary Webinar offered by DiscoverReady.

 

(Disclosure: I am not endorsing any one provider of high-speed discovery and document review services, but DiscoverReady is a client for whom I have performed services in the past).

 

Posted by: johnocunningham | September 1, 2014

Nuggets From A Law Firm Hiring Survey

The August/September issue of Today’s General Counsel features some interesting data from a recent survey of in-house lawyers concerning their legal service hiring practices.

Among the interesting nuggets in the survey were the following:

1. The biggest factor in researching prospective law firm hires is the network inside the company with 84 percent of respondents stating that they utilize that.

2. The second biggest factor in researching prospective hires is the network of friends and colleagues outside of the company with nearly 2/3 making use of that.

3. Only five percent consider directories of “best lawyers” or “best firms” (in my experience, even that paltry number may be high).

It was also interesting to note that 89 percent of respondents say that the GC or chief legal officer is the primary person responsible for selection, but in my experience most GCs will pay great deference to the suggestions and opinions of their experienced in-house staff as well.

Not surprisingly, the biggest reason for selecting a firm, by far, was a prior good experience with that firm, proving that nothing sells a service like a positive service experience.

According to the survey, the top three reasons – of many reasons – that law firms get canned are the following:

1. Poor service

2. Inefficient work

3. Billing too much for the service

What was most interesting to me, however, was where outside counsel relationships get developed. The most highly rated source for that development, by a good measure, was through colleagues at a prior place of employment (often a law firm). This illustrates the importance of maintaining excellent relationships with former employees, something many leading firms emphasize through organized alumni programs.

Nearly a third of respondents say they have also developed outside counsel relationships with opposing counsel in a prior transaction, proving that how you conduct yourself on the other side of a deal is very important to your reputation and marketing.

For lots of other data on this subject, check out the article at Today’s General Counsel.

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