Dr. Silvia Hodges Silverstein is executive director of the international trade organization Buying Legal Council, a lecturer in law at Columbia Law School, and an adjunct professor at Fordham Law School.

________________________________________________________________________________

In many large companies, legal procurement professionals now work alongside in-house counsel to buy corporate legal and ancillary legal services. They analyze, use data and develop evidence-based rationale for major reductions in legal spend. Choosing a law firm has to make business sense. The 2008 financial crisis accelerated the process for the adoption of legal procurement, but publicity about billing practices, big ticket spending by large corporations, and corporate profit pressures are at the root of this change. The same development happened in other professional services, including management consulting and tax and audit services.

Companies with significant legal spending were the first to involve procurement in the purchasing of legal services providers well before the crisis, in the early/mid-2000s. Highly regulated industries first embraced legal procurement, particularly the pharmaceutical industry and financial services, as well as energy companies and utilities.[1] Today, many large companies around the world from a wide range of industries employ legal procurement professionals. There is no reason to believe that large corporations will return to the traditional approach of in-house counsel as sole buyers of legal services.

Why Do Your Clients Involve Legal Procurement?

It is typically the organization’s top management, often the CFO, who mandates procurement’s involvement with the buying of legal services. The goal is to help in-house counsel better manage cost and reduce supplier spending, and to ensure that they buy legal services in compliance with company policies. Other drivers of bringing in procurement include the desire to achieve more objective comparisons of legal service providers through measuring and benchmarking outside counsel’s value and the desire to streamline operations, improve efficiencies, find better ways to structure both fee arrangements and budgeting, and increase predictability and transparency.

When souring legal services, procurement commonly takes a process-driven, business-to-business approach used in other “categories” or areas of spending. Legal procurement supports in-house counsel with decision-grade data and develops the purchasing strategy, process, and criteria, as well as in negotiation and contract development phases, engagement letter, retainer, or framework agreements. Typically, procurement issues requests for proposals (RFPs) and manages the proposal process. This can take the form of matter-specific RFPs or panel RFPs for a group of preferred providers.

Many legal procurement professionals today are also responsible for fee negotiations. Procurement’s expertise in negotiating favorable economics and contracts for their employers has the potential to put law firms under significant and often new pressure to deliver more for less in the future.

Procurement is often also responsible for monitoring firms’ billing behavior and adherence to billing guidelines. Legal procurement checks firms’ compliance to billing agreements, and — if necessary — intervenes. What’s more, procurement conducts post-purchase performance evaluations. The above-mentioned GlaxoSmithKline case study describes the pharmaceutical company’s approach of firm evaluations, asking both in-house counsel and outside counsel to evaluate outside counsel’s performance on a given matter using a set number of dimensions (such as overall management of a matter).[2]

Does Procurement Influence the Purchasing of Your Type of Legal Services?

Legal procurement professionals typically source and manage “ancillary” legal services including e-Discovery, court reporting, medical records, or registered agent services. They are often responsible for shortlisting the providers, evaluating the offers, and even selecting the providers.

Routine legal services such as document review and due diligence are also commonly sourced by legal procurement. However, it is more common that in-house counsel are involved in shortlisting different providers and making the final decision.

At more and more companies, legal procurement is even involved in sourcing complex, high-value, high-stakes legal services. It typically leads the procurement process, ensuring that robust criteria for evaluation and selection are established and applied in compliance with corporate policies. Today, procurement is also regularly involved in sourcing, managing, and influencing so-called “bread and butter” legal services (those between high-stakes work and more routine, repetitive work).

Procurement is involved in a broad range of legal services from litigation, transactional, and — to a somewhat lesser degree — advisory work, in a wide range of practice areas: from commercial law, M&A, real estate, and employment, to intellectual property law, and more.

While legal procurement professionals often decides on ancillary legal services providers, they rarely — if ever — make the final decision on which firm to choose, nor do they have the ability to veto in-house counsel’s decision. Although procurement may make suggestions about firms to invite to tender for work, it is generally the legal department’s prerogative to name the firms it deems capable and appropriate to do the work, and to establish which legal and subject matter expertise is needed. The general counsel and designated in-house legal team also make the final decision. This is unlikely to change in the future.

What is Important to Legal Procurement Professionals?

Legal procurement professionals look for lawyers and law firms who have experience with legal issues similar to the one at hand (for matter-specific RFPs) or for types of services the company typically faces (when looking for panel firms). The firms’ and their lawyers’ know-how and skills must be well matched. As a rule, procurement will want to know if the firm has done similar work or solved a similar issue for another client. More advanced versions of this are whether the lawyer or firm has argued in front of a particular judge or court. Procurement wants to be sure outside counsel will be able to deliver the desired outcome and be efficient.

Procurement naturally looks to match the right firm with the right expertise for the right amount of money: Value for money and service excellence is central to procurement when evaluating firms’ offerings.

Procurement also looks for firms offering value-added options. Continued legal education (CLE) seminars for in-house counsel and business-level training as well as hotline/helpline access for in-house counsel and line management to ask quick questions are favorites among procurement professionals. Other desired value-adds include in-person visits of the client’s office/plant/facility to get to know their business; participation on internal calls that provide insight into a specific business or practice area; Secondments of lawyers; provision or development of basic templates and forms; conducting pre-matter planning sessions; and share-points with real-time access to the company’s documents. (See the Buying Legal Council’s annual survey for further information.)

Procurement also looks at law firm’s approach to staffing  (What is the lawyer to paralegal ratio? What is the percentage of partner hours?) and how firms deliver the service. Project management and process improvement capabilities have become important to legal procurement professionals.

Procurement is certainly not shy about its intent to lower legal spending, and unless alternative fee arrangements are used, legal procurement professionals clearly expect discounts on law firm’s standard rates. It is untrue, however, that procurement professionals only look at the lowest price without consideration of a firm’s expertise and experience.

 What You Should Do Today

If your clients involve procurement, you may need to rethink how you deliver legal services, reengineer your processes, improve your project management capabilities, boost your pricing prowess, and perfect your cost management.

It is highly advised that you to develop relationships with your current and prospective clients’ legal procurement professionals if you haven’t done so already. Do not wait until they issue the next RFP. Get to know them, understand what is important to them and what drives their decisions. You are more likely to prepare a proposal offer that is aligned with their intentions and more likely to win the work. (See the Buying Legal Council’s latest book, “Winning Proposals,” for further information.)

Think also about which legal tasks and projects you could or should standardize, and automate and work with procurement to discuss the options. Show how you plan to bring real efficiencies to their matters. Show that you are a great partner for their company.

Susan Hackett is a founding partner and the CEO at Legal Executive Leadership, LLC, a business dedicated to advancing law firms’ productivity and practices. Prior to establishing LEL, she worked as the senior vice president and general counsel to the Association of Corporate Counsel for 22 years. She is a recognized authority on in-house counseling, corporate client service, and law department operations, who applies her creativity and deep knowledge of leading success practices to better equip her clients (in law departments, law firms, and legal industry service organizations) to advance strategic goals and resolve operational challenges. Susan is a double Bachelors and Juris Doctorate graduate of the University of Michigan. With her experience, talent, and dedication to public service projects and non-profits, she has set herself apart as one of the most sought-after keynote speakers and spokespersons on corporate legal practices.

__________________________________________________________________

Richard Levick, Esq. is chairman & CEO of LEVICK, which provides strategic communications counsel on the highest-profile public affairs and business matters globally — from the Wall Street crisis and the Gulf oil spill to Guantanamo Bay and the Catholic Church. Mr. Levick was honored four times on the prestigious list of “The 100 Most Influential People in the Boardroom” and has been named to multiple professional Halls of Fame for lifetime achievement.He is the co-author of four books, including “The Communicators: Leadership in the Age of Crisis,” and is a regular commentator on television and in print.

Introduction

 The accelerated information revolution of the last generation is giving way to the nascent Artificial Intelligence (AI) revolution in which apps are already making rudimentary arguments in legal proceedings. As such, lawyers face obviously dramatic new challenges in litigation and other high-profile matters. How do we control the narrative amid ever-faster-moving media that hardly anyone can comprehend, much less command? The plaintiffs’ bar, NGOs, and activist investors are among the leaders in the effective use of these new technologies, which increasingly put companies and their lawyers on the defense, often after it is largely too late to control the message.

This information revolution has changed the power dynamic. For our entire careers, information flowed from the top down through advertising, public relations, candidate funding, and lobbying. It was a republican form of communications; that is, a few groups of people served as gatekeepers to the masses. As a result, credible journalists, committee staff, and financial analysts were the purported truth-tellers. What they wrote, said, or did controlled the narrative. Today, we exist in a democratic form of communications, and the narrative comes from the other end — the grassroots. Information works its way up into the mainstream narrative, and that content determines how consumers, legislators, shareholders, jury pools, and influencers think, feel, and act. The difference between republican and democratic forms of communications is akin to the difference between monologue and dialogue. Listening — social, critical, risk-mapping — is now essential.

In this environment, litigation (real or potential) is only one concomitant factor that C-Suites, boards of directors, and law departments must weigh in order to determine a best course of action. Today, those decision-makers have to manage risk in an exponentially broader context where, for example, an inopportune firing or victory in a court of law can be disastrously Pyrrhic if it ignites a social media firestorm or social activism that may lead anywhere from adverse regulatory or legislative initiatives to consumer boycotts. As such, any decision regarding high-profile litigation — e.g., to settle or not to settle — must be made with a more prescient eye to the business consequence of that decision. If technological innovation means anything, it means transparency and speed. Anything that is not sealed will almost instantly become public.

Lawyers can, amid this maelstrom, carefully limit their “proper” roles as advisors on legal liability. They can, if they want, dutifully take themselves out of the larger fray, separating themselves from functions more traditionally associated with “corporate communications,” “investor relations,” “risk management,” “government relations,” etc. Alas, those who do so will simply make themselves less relevant. As challenging as it is, wiser corporate leaders eschew silos; they are moving instead toward seamless corporate teams that bring multidisciplinary skills to bear in order to determine what’s coming next and prepare for the alternative contingencies. Of course, with this seamlessness comes the realization that the lawyer cannot — and should not — always control the decision, much less the internal conversation.

Two recent watersheds underscore the anger as well as the unprecedented empowerment of diverse stakeholder segments. First, with Donald Trump’s election, a “Rule by Tweet” was ushered in. It soon became obvious that any company — large or small, public or private — is potentially implicated in a complex political dynamic and cast as hero or villain, depending on one’s point of view, with respect to a potentially infinite number of policy issues, from trade to immigration. All that is required is an accusation — any accusation — on a topic that fits a preexisting bias held by an angry mob, especially a digital one. The days of reflection and discussion in the marketplace of ideas is over, replaced by so much shouting (sometimes all in caps).

It isn’t, of course, just the Presidential Tweet, a tactic that quickly lost its power — a power, by the way, initially considered so vast that the Eurasia Group listed it as the number-one enterprise risk at the start of 2017. In any event, fake news has supplanted real news as an essential risk index. We have gone from the inveterate “two-source” rule used by journalists to verify their facts, to the “one-source” rule that was the norm during the Clinton impeachment, to the “no source” rule that governs today. Risk is no longer about what is real, but what is perceived.

The second seminal business event of 2017 occurred some months later when the United Airlines scandal further underscored the extent to which major corporations remain woefully ill-equipped to manage crises in any marketplace where crises have become the norm. As the stakes get higher, it is painfully obvious that such companies have made little if any perceptible progress in terms of evolving best practices to meet the importunate demands of global communications. Companies, it seems, understand the power of digital and social communications in building brands, but not so much when they are under attack.
The United example featured a CEO, Oscar Munoz, who previously showed powerful and decisive crisis leadership at the helm of freight rail CSX. Yet, under Munoz, United waited a full 17 hours after the horrific “sanctioned mugging” video first gained traction before it responded in any fashion — waiting, in fact, for the Chicago Tribune to cover the story. In other words, United remained silent until traditional media determined the matter important enough to merit the airline’s attention. In the digital age, that’s like resting the company’s future on a sundial. Based on Mr. Munoz’ stellar leadership over the years, the inevitable conclusion is that, if such a disaster can happen at United, it can happen anywhere. Past is no longer prologue.
Equally important was United’s myopia; the airline saw the problem as mainly an investor relations issue, on the one hand, and as a uniquely American event, on the other. Yet profit alone cannot dictate wisdom and an exclusively American lens misses the instantly global nature of crisis in the digital age. By the time United finally figured out how to respond properly — three full days into the expanding crisis — 20 million Chinese per hour were downloading the inculpatory video. That was a dangerous critical mass in United’s most important expansion market.

In this context, multifaceted and multicultural crisis teams are critical. When response time is limited to hours, if not minutes, teams that know and trust one another before the adverse event happens are critical in providing an indispensable 360-degree perspective. Do you already know your crisis team and trust them enough to rest your future with them?

Suddenly, if lawyers are to be considered a truly strategic asset during a potentially high-profile legal matter, much more is required of them than simply telling your client and team, “No comment” and “Stay off Facebook.” When liberty, market share, and regulatory fines are at stake, the brand is paramount and the strategy must be, well, strategic. The legal issues are critical, but they are part of the equation and not necessarily the sum.

 May 1, 2012 – The Revolution Will Be Televised

 It’s not just the audience, but the Internet itself that is also constantly changing to an extent that demands persistent attentiveness to the actual means of communication. The challenge is therefore both strategic and tactical; in other words, companies must have both a game plan and a familiarity with the ever-evolving digital tools by which that plan can be made to succeed.

It’s not about the new “shiny” thing, but rather about separating the wheat from the chaff. Of all the hundreds of new media platforms and hardware, which ones change the way in which people receive and share information? Both receiving and sharing are pivotal; receiving, for the obvious reason that democratized news choices undermine the nearly three-century-old Fourth Estate oligopolies. But sharing is equally powerful because how information is exchanged changes the equation. If a news consumer can now share their stream of information, they have the power of William Randolph Hearst (“You furnish the pictures, and I’ll furnish the war”) to develop and sway trends. Since truth is usually only what people learn first — “A lie can travel halfway around the world while the truth is putting on its shoes” — you concede the argument by ignoring seismic trends.

On May 1, 2012, the trend grew ever more seismic when Google changed its analytics to give optimization precedence to spoken versus written content: i.e., that content which shows up first at the top of their dominant search engine listings. (If you want to keep something a secret, the safest place is the second page of a Google search result.) Changes in analytics happen maybe 100 times a year at Google. It’s always kept secret until it’s implemented, so no one can game the system. But the May 1, 2012 change was historic because, for the first time, audio changed the game. Suddenly, videos could control the narrative of a case or a controversy largely by controlling the search results. While the defense bar still has largely not figured it out, the plaintiffs’ bar and activist investors merrily control the narrative in matter after matter.

It was precisely the sort of decisive “event” that should inform how lawyers and corporate communicators go about their business. At a crucial moment during a litigation, crisis, or other brand-impacting scenario, global corporations and those who advise them must know, not just what to communicate, but how to communicate it. Emotions, not facts, control the narrative and therefore jury pools.

 The Three Lessons of the Information Revolution

 There are three critical takeaways from this transformative shift in communications. While they may seem obvious, they are indeed so transformative as to demand separate consideration.

 1.     Speed: To say that the Internet has sped up our lives is to repeat the painfully obvious, yet we usually miss the real lesson because we think it’s all about doing the same thing, only faster. But that is a drastic misreading of the fact and a sure-fire recipe for disaster. Speed really means that we can no longer base litigation or crisis communications strategy on being reactive. We must now enter the far riskier, unfamiliar world of the proactive. There is no longer any time to be reactive because minds are already made up by the time you have done so.
 
This new proactivity doesn’t necessarily mean going first, and it certainly doesn’t mean taking unnecessary risks. Agile proactivity entails instead the kind of in-depth and substantive risk assessment that informs you as to what’s going to happen next. All communications strategy must be built on the kind of risk intelligence that is gained from a far deeper dive than Google searches or a discussion with traditional Enterprise Risk Management professionals. We’re talking instead about the resources, human and otherwise, that can spot the canary in the coal mine.
 
For Wells Fargo, Mylan’s EpiPen, fracking, the TransCanada Keystone Pipeline, Fox News litigation, offshore drilling, sugar, and thousands of other matters and entire industries, there are key patterns evident months or years ahead. You must look for them; understand who’s saying what, from where, and why. Who is the first to tweet? What is the URL? Who is funding it? Are they purchasing Search Engine Marketing (SEM) advertisements? Where is the information coming from? What does relevant NGO fundraising cover? Who’s behind the video? To which journalists are your adversaries pitching their sides of the story? Who’s hacking whom, and what information has now become available? In all cases, intelligence informs strategy. Forewarned is proverbially forearmed, and everything else is guesswork.

       2 Transparency: We all claim to be in favor of transparency until we’re the one called upon to be transparent; our enthusiasm then wanes. Information leaks as hacks are veritable 100 percent inevitabilities. The reason for the hack may have nothing to do with the litigation or matter that you’re working on, but once in the ether, the information is fair game for anyone to exploit, including your adversaries. If you don’t want it public, don’t write it down. Difficult advice to follow some of the time, but a very sound practice all of the time! If you have written it down, if you’re running that risk for whatever sound business or legal reason, anticipate in your contingency planning how you’ll respond when the worst happens and the information is shared publicly from the least flattering point of view.
 
      3 Anger: We’ve mentioned anger as a decisive component of the New Normal; let’s understand what it means. People are angry in ways we have not seen since the 1968-72 period at the height of the anti-Vietnam War movement, and at times it feels like we are moving toward an 1856-1860 pre-Civil War environment. Trust is at a premium, and your corporate trust bank may be overdrawn. Indeed, the five big tech companies — Facebook, Apple, Amazon, Netflix, and Google (or FAANG) — are moving from gods to robber barons before our eyes. No time on Mount Olympus is ever permanent, as trust is now measured in terms of days and weeks: Yesterday, you or your client might have gotten the benefit of the doubt. “That’s not the company I’ve come to know and trust,” said your stakeholders. But now they’re wavering and, in a week or two at most, you will be perceived guilty until proven innocent.
 
Now, more than ever, you have to use your peacetime wisely and build a brand like Hershey’s or Harley-Davidson’s. Such companies have armies of true believers who know that problems are the exception rather than the norm. To aspire to this favored circle, you have no choice but to build your trust bank now, before the litigation or crisis tests your brand loyalty. Once the blockbuster lawsuit is filed, the lawyers need to ask the communications professionals what they are doing outside of the litigation to earn trust in an environment where trust is no longer a given.

 
What Separates Success and Failure in High-Profile Litigation and Crisis?

In working on hundreds if not thousands of high-profile matters around the world, we have found three consistent rules that separate success and failure:
1.     Fear: Companies hire senior executives for their monetizing skills in order to grow the company. They spend precious little time during the hiring and integration stage focusing on the descendant side of the curve. How will they do in a crisis? Most people have never been in the foxhole and they are just not at their best under fire. Even in the military, when highly trained soldiers go to battle, it is assumed that 50 percent won’t discharge their weapons when they need to. If your teams are not tested, haven’t prepared for a crisis, are not accustomed to making rapid, critical decisions with the information at hand, they will be ruled by fear. Fear never allows for the best decisions. Only through practice and drilling do we develop the instincts that overcome the power of fear.

2.     "What got you here won’t get you there.” Because the careers of most crisis team members are all about building the company and success, their perception is to just keep doing more of the same in a crisis; presumably, that will work as well as it did prior to the crisis. The presumption is natural, but it’s wildly unjustified. In a high-profile matter, all the rules change. Your audience is different because it’s now comprised largely of non-customers and non-shareholders. You are no longer trusted. Prior to the high-profile event, all you needed to do to be on the side of truth was to say you are. Now, you need others to do the evangelizing and it’s all subject to proof in any event. Nor is everyone within the company rowing in the same direction. The longer a crisis goes on, the likelier it is that people will start worrying about their division, their personal liability, and, of course, their job. It’s no longer the brand first, no longer command and control. You need to look at the situation differently, and act differently.

3.     Why we can’t.” These three simple words are the most damaging at the critical moment of a high-profile matter. A smart company gets its crisis team together and HR makes a suggestion about firing someone and legal will say “why we can’t.” Or legal will make a suggestion and IR will say “why we can’t.” It goes on and on until the moment of opportunity when a sacrifice, an apology, an act of contrition, or simply generosity would contain the cancer. But at that moment, no team member has the stomach to take the risk and recommend a sacrifice, be it a temporary dip in share value, a product recall, or the firing of a division head. So the team makes no decision at all until they can “gather all the facts.” Alas, in a crisis, such moments of opportunity do not return — and failures to seize such moments are far commoner and far more damaging than most of our less-than-perfect decisions. “Why we can’t” is the opposite of opportunity.

The Eight Rules of Litigation and Crisis Communications in the Information Age
To some extent, the following best practices are not new; they evolved under circumstances that were exigent at the dawn of the century during the early stages of Internet influence. That said, they are more important and more urgent now than ever before. Companies and their counselors who, at that earlier juncture, saw the need to fundamentally rethink their priorities are today reaping the benefits. But most companies must now play catch-up, a task all the more daunting in light of the accelerated speed with which the social media are expanding even as regulators, plaintiffs’ lawyers, activist investors, the media, and NGOs relentlessly up the ante. 
Daunting or not, 21^st century businesses and their lawyers have no choice but to play the game. Here are a few essential rules of that game.

Risk Intelligence – The New ERM.
It is worth repeating: Intelligence informs strategy. Almost all defense lawyers and even most communications professionals operate on what they have learned over a lifetime. As valuable as that has been, it means they operate backwards in a pre-Information Revolution-style.
Nixon opened relations with China by taking only a dozen reporters with him — yet he was assured of communicating with all of America. You simply cannot do that today.

When truth was dominated by those with access to treasured gatekeepers (journalists, op-ed writers, think tanks, financial analysts, Hill staff, etc.) and those who had the largest advertising budgets, strategy was easy. In fact, it really wasn’t strategy at all, but rather a series of tactics: press conferences, press releases, photos, advertisements, or a liberally oiled echo chamber. You were a communications genius if you knew to focus on the morning or afternoon newspaper or with which of the three television networks to advertise. Today, though, real strategy matters. If it doesn’t feel genuine, it doesn’t work.
Too many companies still look at Enterprise Risk Management as if it’s about studying history and extrapolating the future. While that has a place, it misses the most significant side of the Ouija Board. In order to respond ASAP, you must know ASAP what you’ll have to be responding to. To that end, the legal and/or crisis team should have regular access to risk experts who deploy the most efficient technology in order to monitor the digital and social media and to develop risk maps. Effective risk-mapping identifies, from whom trouble is likely to arise, what they’re saying, and what their weaknesses are. If you understand who your adversary is and what motivates them, you can develop strategy. Without it, you are just guessing.

Once you know what you’re dealing with, then and only then can you engage in strategy. In industry after industry, high-profile matter after high-profile matter, litigation after litigation, defense lawyers digest tons of information but almost nothing as to the deep background of their potential or actual adversaries. Yet there are highly sophisticated plaintiffs’ lawyers who know precisely with which reporters to plant leaks in a given industry in order to effect maximum pain. Or how to control search engines to dominate results. Or when to release an emotion-packed video to change perceptions about who the villain and hero are. Or how to engage state attorneys-general, thereby mounting a highly effective one-two punch of regulation and litigation. Some activist investors are so savvy in both the traditional and social media that they can clandestinely deploy NGOs in a public attack in order to advance their private agendas. Absent an awareness of these subtle powers, targeted companies are only punching at shadows in their attempts to keep pace and influence the governing narrative.

Here’s the key: This level of risk intelligence is not about “big data.” It is about human intelligence in the study of social media users, trends, and activities; it’s about looking at lobbying disclosures, foreign country representations, and other public databases to see who’s in bed with whom. It includes the study of foreign regulation and litigation to discern patterns and practices; it’s about political donations and activities and reviewing dozens if not hundreds of other sources in order to disclose the intricate interrelationships of relevant parties. Once you understand the factors that drive your adversaries, you can develop the strategies to win. 
With a robust risk monitoring and analysis system in place, decisions can then be made about the importance of any mention — which can be simply ignored, or publicly refuted, or deciphered as an early warning sign of a much larger storm that might be brewing. Certain bloggers are “high-authority” and usually justify the team’s attention. Certain patterns may emerge when, for example, an outlier, earlier dismissed as a crank, now seems to be gaining attention and credibility among more traditional audiences.

Teams.

Quick, who acted more quickly — Jim Burke in the famous 1982 Tylenol murders or Tony Hayward in the 2010 BP Deepwater Horizon oil spill? We all want to say Jim Burke of Tylenol, as that remains the gold standard for crisis response to this day, some four decades later. The late Mr. Burke was a hero and his team did respond brilliantly as it put people over profits, but they did not act with literal speed. In fact, they were not allowed to do so; Johnson & Johnson was prohibited by the FBI from acting amid fears of copycat activity. Five days in, however, Burke insisted on acting and the rest, as they say, is history. Tony Hayward at BP not only acted instantly, but also chose transparency as the best way to establish credibility. This comparison is not meant as criticism in any way toward either company or leadership, but instead a testament to the speed of change. The fact is emblematic: In the early 1980s you could wait five days and still claim the mantle of instantaneous response — while, three decades later, literally acting instantly, you still pay more than $20 billion in fines, incur $62 billion in total costs, and get no credit for it. The difference bespeaks the exponentially accelerated speed of communications as well as the necessity to know and trust your crisis team now, long before the high-profile moment actually happens.

When the phone rings at 4 a.m., it’s seldom good news. From the moment a company is alerted to a crisis through the moment it finally fades from view, decisions are required at the speed of the crisis, not at the speed of decisions based on fact-gathering or discussions of legal exposure. Yes, information is as critical as we have suggested, yet you are still going to have to make decisions about issues that the public deems critical before you’ve gathered all the facts.
Needless to say, you never publicly communicate what you aren’t certain of, nor do you ever comment on something in a way that will limit your legal options. But that doesn’t mean some comments shouldn’t be made or that allies can’t provide important and timely messages. The bigger the crisis — the more time zones it impacts, the faster it moves without the benefit of any downtime — the more you already need to know and trust your response team if you want to get ahead of the game.

In an age of permanent crisis, crisis teams cannot be ad hoc; businesses must operate on the assumption that deployment isn’t a matter of “if” but “when.” Initial leadership begins at the top, in the C-Suite. Absent leadership from that quarter, it becomes a fiduciary duty of the board to demand that crisis teams be selected and trained, and to ensure that the make-up of the crisis team reflects the aforesaid multidisciplinary spectrum, which also includes IT and social media expertise as well as legal, IR, HR, financial, etc. Ideally, though, the team should be a direct arm of the CEO, an elite squad of trusted managers assigned by him or her, and who, when the crisis occurs, will help maximize the CEO’s impact as a leader.  

In this process, in-house counsel is well-positioned to support and inform the team formation. As lawyers with presumably close involvement at multiple operational levels, they have a unique grasp of corporate liability on a day-to-day basis along with a telescopic view of the trending laws, policies, and more that signal future liabilities or opportunities in the making. In-house counsel is indeed better positioned than ever to play a leadership role to both support compliance and help create safeguards against the sort of systemic breakdown that, for example, happened at United Airlines.      
Formal training should begin immediately upon the formation of the team and should include tabletop exercises, role-plays, and test runs. The larger benefits are manifold as an essential trust is built among team members. Protocols and lines of intra-team communication are established; new trends are reviewed; new contingencies evaluated; and new Internet tools assessed. In most cases, the tabletop exercises are best conducted by outside communications counsel who can bring a fresh perspective to the problems themselves, with a judicious eye as to how well the organization is actually prepared to respond.
Here are three rules to keep in mind about your team:

1.     Go/No Go: Gene Kranz, former NASA flight director at Mission Control, effectively used “Go/No Go” decision making. The biggest mistake crisis teams make is failure to make a decision. Paralysis by analysis. They lose whatever advantage they have (that of acting quickly, no matter how bad the situation) and let others — adversaries, plaintiffs’ lawyers, victims, journalists, etc. — control the narrative and thereby write the history. Fear of failure negates the power of action.

2.    Team Size: The team should be as large as it needs to be to actively invite multiple perspectives, but small enough to act efficiently. Speed and decision-making are key.

3.    It’s the DNA: You cannot anticipate or plan for all contingencies. Don’t try. What you are looking for in your team is chemistry and DNA. A team that trusts and knows one another understands the right priorities. Having people comfortable in the crisis-planning process results in a well-functioning team adapted to the situation at hand. You’ll know you have a team with the right DNA when they are not stressed by the need for rapid decision-making — and when they all genuflect to the corporate brand, not their own fiefdoms.
 
Privilege.
While the ultimate question of what is privileged is evolving and determined by jurisdiction, it is always wise to anticipate attempts to pierce the veil. By hiring a litigation and crisis communications firm early in the process, and integrating it as part of legal strategy development, you show credible intent to protect the privilege. It may not be a perfect defense, but it helps make the argument (should it later be needed) that any pursuit of information must be limited to a specific narrow scope. The failure to build this wall invites plaintiffs’ lawyers to engage in discovery about everything that your internal corporate communications officers and agency of record may have discussed with the lawyers, even if entirely unrelated to the case. Don’t make trade secrets fair game in a fishing expedition.
The agency of record must be included and protected. Their outside perspective is essential; corporations in or out of litigation and crisis must, after all, see themselves as others see them. To that end, the most successful risk management successes have typically entailed a close working relationship between law and communications firms. In most instances, the law firm thereby plays an additionally needed role with best-effort attempts to extend privilege to the communications or risk management experts with whom they partner.

Chronology – Exposure – Gating Events.

Thirteen years elapsed between the first anti-GMO site on the Web and the food industry’s first pro-GMO site. Wells Fargo had five years’ notice after the Los Angeles Times published the first story on fraudulent accounts. The energy industry had nearly a decade of notice after the Sierra Club removed official notice of its support for the low carbon-footprint fracking extraction method from its website. The very next year HBO released the film Gasland, which lambasted fracking; six months after release, the movie’s website topped the Google search engine for searches of the word, “fracking.” A movie had morphed into a movement and a 40-year energy extraction method supported by environmentalists had suddenly become a target. But it really wasn’t sudden at all. 
Crisis moves so quickly, teams need a written and drawn chronology in order to comprehend what is happening. Once the stars in the constellation are seen in order, many things come into focus: early warnings, fact patterns, legal exposures, credible responses, allies and adversaries. Such a chronology may seem too basic a tactic to justify mention in a larger discussion of strategy, but it is a kind of strategy itself. The very fact that teams engage in this exercise ensures that every crisis team member is on the same page (literally). We all know what the facts are and when they happened. We can now anticipate what’s likely to come next; just as important, we see our crisis the way our critics do, with its tsunami of information.
Don’t stop with just the chronology. Map out legal risks and liabilities in order to clearly decide between taking a brand/market risk and a legal one. It’s a skill that will prove crucial when the time arrives to decide on a sacrifice. Follow up by creating a calendar of gating events, mainly future public events that may impact your private crisis. What’s dead ahead in the equity markets, in Congress, in the states, or anywhere else a new news cycle may arise? The answers will help you see — and plan for — the near future rather than be taken prisoner by it

Welcoming Dissent.

Strong crisis teams need to genuinely invite dissent because that’s how ideas and strategies are fully vetted — and the failure to do so almost guarantees that the communications strategy will miss the mark.
Once the team understands chronology; potential legal, brand, and investor liabilities; and an approximate timeline of near-future gating events, then it becomes easier to manage the various priorities and biases. If the potential legal liability is greatest, then legal priorities lead. If, on the other hand (and I know this is anathema to many lawyers) brand vulnerabilities are the most threatening, then brand leads. If it is share value, then IR leads. The lead disciplines do not dominate at the expense of all the others, but they are given priority consideration.
In a meeting I was part of during  the Gulf oil spill, Tom Campbell, a partner with the Pillsbury law firm, who was representing the interest of a foreign company invested in the Gulf, identified the legal liabilities after the fact-gathering and chronology were complete. He then said: “We calculate the company’s potential federal and state liability to be $2 billion. I don’t see any other area — IR, HR, PR, brand, etc. — with higher liability. But if I’m wrong, please tell me why I’m stupid.”

Such integrity, transparency, and fairness are rare in crisis teams, especially among the lawyers on those teams, but we’re talking about the organization’s highest aspirational value. It says that the best, most practical strategy wins. Winning everything isn’t possible, except in the movies. Instead, successful crisis resolution is all about making the decisions that minimize the sacrifice that the client is going to have to make.
“Tell me why I’m stupid” was not just a factual question — i.e., does anyone have a better argument to make? — but an emotional one as well. Campbell was demonstrating leadership through vulnerability. It is a risky action style, but it is demonstratively courageous and it allows your team to be at its best. Telling truth to power intimidates even the most senior and experienced executive. Inviting dissent requires more than asking for it. As leaders, we need to demonstrate that there is no recrimination for disagreement and that open discussion is warmly welcomed. Remember, the ultimate arbiter is not the ego in the war room, but the value of the brand, minimization of the legal liability, and responsiveness to the marketplace. Nothing else matters.

Sacrifice.

When companies drill down on chronology, garner facts, measure liability, and identify adversaries and allies early in the high-profile litigation or crisis process, they enable their teams to assess the cost and value of assets, both real and goodwill. While crisis teams have a strong sense of the cost in terms of dollars and cents, their newer audiences in a high-profile matter — i.e., no longer just customers and shareholders but, now, regulators, NGOs, motivated citizens, plaintiffs’ lawyers, media, and others — have their own sense of justice. Nothing makes a story fade from view faster than a meaningful sacrifice to appease that sense. By sacrifice, we mean doing something that costs you in the short term and that this new, expanded audience will appreciate enough to no longer consider you the villain.

In 1982, Jim Burke removed all of Johnson & Johnson’s over-the-counter products from store shelves before the company was required to do so by the FDA. It is still the definitive model of sacrifice because it included two critical elements: 

1.     J&J clearly put people before profits by doing more than the company needed to, a move so bold it became J&J’s brand for nearly three decades: “It is the company that cares.” As to the cost of that sacrifice, do the arithmetic: Three decades of growth followed one quarter of acceptable loss.

2.     J&J acted before it needed to, before any federal regulator required action. While it’s tempting to wait and see just how ineffectual the oversight may turn out to be, you’d lose all the gains with which the public will lavish on your leadership. No parents give their kids credit for cleaning up their rooms after they’ve been told to clean up their rooms.
 
By contrast, BP, in the Gulf oil spill, paid one of the largest corporate fines in history, yet, as we’ve noted, received virtually no credit for cooperation because it all came after the White House and others had taken them to the woodshed. The fastest way to rebuild brand credibility is by volunteering your own punishment. If you look at 2007, the so-called “year of the recall,” three industries — pet food, spinach, and toys — all had subsequent record quarters after their recalls because they made sacrifices, took responsibility, and volunteered to fix the problems.

Some sacrifices may be as simple as an apology, which is indeed a form of genuine sacrifice, from the appropriate spokesperson. While many lawyers will parse each word of an apology, the critical value is in its voluntary nature, its genuineness, and integrity. Here, lawyers must be particularly open to rethinking their instincts. An apology acknowledges culpability and culpability equals exposure, which lawyers are trained to avoid. But if the brand is at risk, the brand comes first, even if it means a partially disadvantaged position at the settlement table.

On the other extreme, sacrifice often takes the form of a product, division, or personnel change; CEOs themselves are occasionally the sacrificial lambs. The option to discuss any sacrifice, involving anyone and anything, is something the team must feel empowered to exercise at any point during a crisis. It is here that the “telling-truth-to-power” courage gets truly tested. At the end of the day, the paramount question is, “What is in the best interest of the brand?”
Sacrifice often entails goal-switching, which is the single most difficult thing for executives. Of the three things that people fear the most — death, failure, and change — goal-switching touches two of the three hot buttons. When U.S. Airways Captain Sully Sullenberger had his close encounter with the Hudson River, he instantly understood the need to switch goals and focus on saving the 155 lives, not the $60-million plane. At a critical moment — actually, the fateful one — saving the airplane was no longer the priority; saving the passengers was. Sullenberger’s airplane was just one company asset among many; likewise, in less dramatic situations, there are often much more important considerations than a lawsuit. As straightforward and obvious as the need may seem, getting people to let go of the assets they represent will be the most difficult challenge.

Lawyers and crisis teams that understand the significance and timing of sacrifice have successfully recognized this single most important factor in determining success or failure in a crisis.

Culture.

Culture dictates outcomes. It has an unspoken yet outsized influence on almost all high-profile matters. The culture factor soon becomes obvious and critical during any Chinese, Japanese, or Korean crisis that plays out on Western soil, even down to how information is shared internally. It’s likewise obvious when Middle East matters touch American markets. Great leadership comes from those who understand and appreciate that the culture of the market where the crisis arises has to be the culture of the crisis team. Asians must defer to American culture if their challenge is in the U.S. Americans must in turn defer to Korean culture if their problem occurs in Seoul.

Less obvious, but no less important, are the cultural differences between Wall Street and K Street and Main Street, or between legal cultures and brand marketing cultures. Everyone comes to the crisis/litigation table with their own views based on daily experience and expertise. But high-profile matters require us to be more holistic, to consider the world — or at least the crisis — from the viewpoint of others. 

Third Parties.

There is an old saying on Capitol Hill: “Never kick a man while he’s up, it’s too much work.” Wait until he’s down, the wisdom goes, so you can pile on, without any cost to you. As bad as a crisis seems in the opening hours and days, it is never as bad as it can be once it spirals out of control. There is a narrative arch to high-profile matters that is dependent upon the response to the opening act. If the defendant mishandles it and extends the life of the story, the results are obvious.
There is also the Greek chorus who will determine history, or at least the short-term version. So, take your own version of the Hippocratic Oath: First, do no harm. But use your peacetime wisely as well; arrange for supportive thought leaders who can weigh in early and put things in context. These third parties will certainly include prominent social media voices with industry or media followers; the list is also likely to include academics, retired politicians, members of NGOs, unions, editorial writers, and others who can speak on your behalf, or on behalf of positions you want espoused. It might take enough of their courage to weigh in early so don’t make it more difficult for them by asking their help only at the urgent moment when you need it. Know them before you need them.
Pursue Corporate Social Responsibility (CSR) strategically, not just philanthropically. Know the NGOs that care about your causes. Develop relationships ahead of time so that, at the very least, you can have honest conversations without fear of it backfiring. Have your PR team likewise know and connect to high-authority bloggers just as they do journalists.

At the end of the day, people get too much information — 3,000 to 5,000 messages a day — to do much more than categorize and stereotype. All they can numbly ask is: “Is this good or bad?” So help them categorize your company and position, not by trying to educate them with the facts, but through messengers they already know and trust. All communications are tribal. Corporate communications is pleasant enough work on the way up when everyone is happy or at least content. But on the way down, in crisis and litigation, new audiences and old need more personalized non-corporate messengers to whom their tribe relates. It is less about the message than the messenger.

When public audiences see a messenger they trust, they’ll defer or will at least be less inclined to pile on. Apple has spent nearly three decades building a relationship with its audiences, elevating the name from a brand to a religion. It has millions of customers and critics who double as company evangelists. Such fervid dedication may not protect the company from every crisis, but the investment has already paid dividends multiple times.

Conclusion

When was the last time you thought about the power of symbols? Seldom do high-profile litigation and crisis teams adequately focus on symbols. Yet symbols are far more important than anything else we do. The AIG bonuses; the auto executives flying private planes to TARP hearings in Washington; the Australian pictures of a far less expensive version of EpiPen; George W. Bush’s fortunate bullhorn and unfortunate “Great job, Brownie” moments — symbols control our emotions, and emotions control our thinking. If you want to win the day in high-profile matters, you need to own the symbols.
In all high-profile matters, perception trumps reality. Those caught up in what should be, as opposed to what is, are roadkill in the race to the “truth.” Sticking to the facts of your matter will guarantee you miss out on opportunities to reduce the damage and make the crisis go away. A high-profile crisis is as we find it, not as we wish it to be. By seeing the world through the eyes of our new and varied audiences, lawyers become the counselors that our clients need us to be. 

Kevin O’Keefe is the founder and CEO of LexBlog, a blog devoted to helping legal professionals establish networks, build online visibility, and create organic interactions via their respective contributions. In addition to LexBlog, Kevin also founded Prairie Group Trial Lawyers, a virtual law group, after a 17-year tenure as a practicing attorney. He has a B.B.A. and a J.D., and has spent almost 20 years serving as a board member on two Wisconsin area banks. Kevin’s grassroots approach to legal networking is the reason why LexBlog is one of the largest legal blogs in the world.

________________________________________________________________

Blogging: Networking Through the Internet to Build a Reputation and Relationships     

Good lawyers get their best work via relationships and word of mouth — always have and always will. The Internet has not changed this. 

Blogging accelerates a legal professional’s relationships and reputation. What may have taken a lawyer 15 or 20 years to accomplish in professional and business development is being accomplished by good lawyers, through blogging, in two or three years.\

Take attorney Peter Mahler of Farrell Fritz, a mid-sized New York-based general practice law firm. He generates 100 percent of his business from relationships he has built through blogging. Mahler’s New York Business Divorce blog,[1] which focuses on business dissolution matters, has enabled him to build a national reputation and referral base that allows him to work on sophisticated matters with high-quality clients. 

Here are just four reasons why you should consider blogging.

●      Nearly 60 percent of a typical B2B purchasing decision is made before even having a conversation with the provider.[2]

●      Your future clients are Googling you. Seventy-eight percent of executive-level buyers go online to look for legal counsel.[3] What are they seeing?

●      Your competition is blogging. Attorneys from AmLaw 200 U.S. firms publish more than 750 blogs. In-house counsel are blogging and contributing to online publications.

●      Be more profitable. Online business development is efficient and productive. The greater the proportion of work generated online at professional services firms, the greater their profitability.

Lawyers do not blog for visibility per se. If getting seen, alone, were the goal, every lawyer would have his or her face on billboards and in magazines. Visibility means something more for good lawyers. What do people discover about you and your reputation when they ask around? 

Online, people are looking for your insight and commentary, how other leaders in your field cite and share what you are saying, how reporters are quoting you, and at which conferences you are speaking. 

Your law blog delivers this form of visibility. 

Blogging is more than writing content. It requires a strategy. You begin with the end in mind. 

How Do You Develop a Blog Strategy?  

You need not have everything resolved in advance. On some things, you develop a feel as you go — but here are a few considerations as you start.

●      Identify your passion. If you’re not passionate about an area of the law or business, what could you be passionate about? Blogging can be hard at times; make sure it’s an area you enjoy and can get excited about. It may be privacy and cybersecurity law. It may be probate litigation in Florida. We’re all different, but in blogging, a lot of the finer points on strategy come naturally to those with passion. 

●      What area do you want to excel in and be known for? What type of clients do you want to work for? Be aspirational, throw your heart over the bar, and let your body follow. If lawyers are developing local, national, and international reputations as a result of blogging, why not you? Want to be the go-to lawyer for immigration issues for international professional basketball players? Blog.

●      Focus on a niche. Broadly focused blogs are more challenging. People do not follow blogs covering multiple areas of the law; they look for the “go-to” publication on a niche. Niche blogs get cited and shared more often. Their authors are more likely to be quoted by the media. Niches do not restrict your practice; niches open doors. “Niches lead to riches” is a worn cliché, but some things are a cliché for a reason. Here are a few examples of those who have done it right:

○      CommLawBlog5 is regularly read by not only in-house counsel, but also by the FCC; 

○      Canna Law Blog puts a Seattle law firm and young lawyer on the national stage in the burgeoning cannabis industry; 

○      New Miami Blog7 puts an innovative general practice law firm square and center in the Miami business community; and

○      Connecticut Employment Law Blog8 has made a Hartford lawyer a household name for HR executives both state- and nationwide.

●      Identify your audience. Clients, prospective clients, and referral sources are the obvious audience, but they are not the most important. Think about the people and organizations that influence this core audience: mainstream and trade media, bloggers, association leaders, influencers on social media, publishers, and conference coordinators.  

●      Who do you want to know that you exist? Who do you want to know personally that you don’t now? Engage the influencers, and you’ll grow your influence as they engage you in various ways in return. Unlike offline engagement, online engagement leaves a permanent record. When Googling your name or participating on social media, your core audience will see you cited by bloggers and the media, see your blog posts getting shared, and see you speaking at conferences.

Measuring Success  

It's not primarily traffic, search engine results, and subscribers. 

Ask yourself, “Am I growing my relationship network?” “Am I becoming a better lawyer?” “Am I establishing a reputation as a ‘go-to’ attorney in my niche or locale?” “Am I procuring not just any work, but high-quality clients?” 

Chicago attorney R. David Donoghue of Holland & Knight is an example of the strategy, passion, and niche focus that makes for a successful blogger. 

Working as an attorney for an auto supply company in Detroit, Donoghue wanted something more. As a young attorney, Donoghue didn’t think he was seasoned enough to be recognized as a thought-leader, but discovering that one of the most popular legal blogs at the time was written by a smart, second-year associate, he figured he was just as capable. 

Donoghue instinctively knew he needed a narrow focus for his blog to stand out. “I knew that I couldn’t be a generalist; that no one was going to come to me for news he or she could get in The New York Times. I wanted to create the kind of content readers couldn’t get anywhere else.”

 Six months after starting his blog, Donoghue walked into an IP-related legal function in Chicago, and people knew him. “This was a big deal — to have this kind of recognition as a relatively young lawyer in a big city. Because of my blog, I stood out.” Donoghue has gone on to earn millions because of his Chicago IP Litigation9 blog and now launched a second blog, Retail Patent Litigation.10  

As you move ahead, here are tips to make your blogging experience more worthwhile:

1.) Listen to What’s Happening in the World Around You  

Blogging involves authentic audience engagement that requires you to listen (read) first and then talk (write) later. 

For most bloggers, advanced listening tools are integral. You can set up listening tools to follow influential bloggers, reporters, and news publications. In addition to these sources, follow subjects relevant to your niche. The listening tools of choice for lawyers are Feedly, a popular news aggregator, and Twitter. 

Reference and share what you have read while providing your own insight and commentary. More important than simply covering legal updates, joining the “conversation” and demonstrating that you are tracking developments grows influence and a following.

2.) Write to the Medium  

This is a blog, not a legal alert, corporate whitepaper, or newsletter. The best law bloggers write conversationally and with personality. 

Write on general news and apply it to your niche. For example, if a hurricane is hitting the Gulf Coast, write about how HR professionals should treat those missed workdays. With the Apple iWatch and other wearable tech, how does that stand to impact privacy issues? Unlike writing on the latest legislation, litigation, and regulation, the opportunities are limitless. 

Proper formatting is important. Avoid long block paragraphs. People scan on the web, so use short paragraphs — one to three sentences long — and bullets as appropriate. Use block quotes to make sources stand out. Use subheads to break up sections. Don’t worry about an exact word count, but a post as brief as 300 to 500 words may be appropriate. 

Use images for every post. It’s low-hanging fruit that many lawyers miss, but images show personality and subtly add a great deal of visual appeal. Posts without images are less attractive on social media such as Facebook, Twitter, and LinkedIn. Such posts are also less likely to be shared on social media.

Keep titles short (65 characters) but descriptive. Your titles determine how your posts get indexed on Google and how they are displayed in news aggregators. Do not pack your titles with keywords; just make sure they describe what you’ve written. Short, professional, and enticing titles get shared on social media.

3.) Be Proactive  

Too many lawyers get tunnel vision when it comes to blogging, only reacting to the latest legal tidbits. Merely reporting on litigation, legislation, regulations, and narrow news stories in a reactive fashion won't cut it; you need to add value. Readers want to know what’s inside your head. What’s your take? What’s it mean for them? What’s coming next? 

Depending on your niche and firm, being an advocate can work well. Immigration, food safety, employment, privacy, cruise, medical malpractice, IP litigation, and divorce lawyers have developed large followings because they take stands on issues that matter to their clients. They champion the cause of the people they want to represent. Lawyers who take a stand will be surprised at their ability to instill change. 

If you are not going to engage in other ways, answer questions from clients and prospective clients. For every person with that question, there are hundreds of people asking the same question. It’s essential to respect attorney-client privilege, but answering questions shows that you’re listening and that you care. You will build trust, and people asking these questions on search will discover you on Google.

4.) Think About Your Audience  

Effective posts are written with an audience in mind, even an audience of one. Make up that one person in your mind when you start to blog. Talk with them as a late-night talk radio host might, or as you might describe a newsworthy item to your neighbor. 

Who do you want to know you exist? With whom do you want to build a relationship? What groups or industries do you want an in with? Talk with them. Blogs are a great excuse to make an introduction — sometimes even with something as deliberate as an email interview. 

If you reach one person and they share your insight with their peers, you’ve reached a highly targeted, and potentially influential, audience. 

When citing a blogger, reporter, or industry leader, follow up with a soft touch. “As a courtesy to you, I wanted you to know I referenced your post/story in a piece I shared with the readers of my blog (sharing a link to your post). Keep up the great work.” 

You’ll get a “thank you.” You’ll get an opportunity to connect on LinkedIn. You’ll get an opportunity to meet. How many of your competitors are meeting reporters of the local business journal or an executive or general counsel with a prospective client corporation for lunch as a result of something they wrote? 

5.) Get the Right Setup  

Some lawyers like to tinker, others do not. If you are not the tinkering type, get a professional’s help and ongoing coaching and support. Though WordPress is theoretically free, so is rewiring your house. 

A key point that lawyers sometimes avoid: A blog belongs on a site independent of your website. Blogs complement a law firm website. 

You don’t want to put a blog inside a website, but there are ways to make them complement each other: similar colors, a blog title, firm branding in the design of the blog being “published by the law firm,” and strategic linking back to the law firm website and lawyer bios. 

A blog on your website will be viewed as a marketing and advertising effort, no matter what you say or do. You will forfeit the mantle of expertise that an independent publication provides you. You will be limited in how you can use your blog for strategic engagement. In-house counsel do not publish guest posts on a website, yet they do them on an independent blog. 

Blog posts on an independent site from your website on an independent domain get cited by reporters and other bloggers, shared on social media, and are viewed as more credible than posts on a website. You’ll still get the attention and traffic you may be looking for.

Many solo lawyers and small firm lawyers with focused practices use a blog exclusively and forgo a website altogether. Who they are, what they do, and how to contact them are all set out on separate pages on the blog, just like on a website. 

Design and develop for mobile first, desktop second. A mobile-optimized blog, preferably with a responsive design, is critical today. People, especially influencers, are consuming and sharing content on tablets and smartphones. A responsive design ensures that content looks right on all of them. A responsive design is also important for Google.

Content distribution has moved beyond email and Google searches. Law blog posts, just like articles from The New York Times or The Wall Street Journal, are distributed socially via Twitter, Facebook, and LinkedIn. Social media is bigger on mobile than on non-mobile devices. 

SSL, a standard protocol for ensuring that all data transmitted between the web server and browser remains encrypted, should also be deployed on your blog site. SSL is important for establishing trust, and ranking, with Google.

A simple and professional design with an eye toward publishing is key. A blog is not the time to have neon, large logos, lawyer pictures, and other bells and whistles. Design with the reader, on a smart-phone, in mind.

6.) Use Social Media

As of 2017, daily social media usage of global internet users amounted to 135 minutes per day, up from 126 daily minutes in the previous year.

Social media, whether it be Twitter, Facebook, or LinkedIn, is where people are spending significant time. Users of these three mediums tend to be older, highly educated, and more affluent. 

Taking your blog to social media — to the people — is as critical to your success as it is for a reporter in well-known newspapers to take their stories to social media.

Social media is learned through trial and error. Legal professionals should focus on the major three — Facebook, Twitter, and LinkedIn. It may take a year or more to become effective and comfortable on social media. Begin with one at a time.

On Facebook, share your blog posts (in their entirety or in an excerpt) from your personal account, not your law firm’s account. Facebook’s algorithms will determine which of your posts are displayed on the newsfeeds of your Facebook friends. Facebook users see what is of value and relevant to them, they do not see every post shared by friends.

Facebook will work best for you if you are building a network of personal and professional friends and engaging (sharing other stories, liking, and commenting) regularly.

You will of course want to share your posts on Twitter. But it’s most important that you liberally share other people’s stories and posts. Not only will you establish yourself as a well-read authority on your niche, but you'll be seen as someone who “gives” more than they ask in return. Feedly makes this easy.

Include the Twitter handle of the people whose stories and posts you tweet. This way they’ll see that you have shared their work on Twitter. Relationships and followers ensue.

When sharing your blog posts on Twitter, give a “hat tip” to the subject of your post and to any blogger or reporter whose story you may have quoted. They’ll appreciate the coverage and your reputation will grow. A hat tip is given by merely penning “h/t @kevinokeefe” at the end of your tweet following the url.

LinkedIn is a growing as a social network for legal bloggers. Share your blog posts in the status update with a brief summary of your post. Your posts will then appear in the LinkedIn feed of users. Again, algorithms will determine what gets seen and by whom.

Look for the professionals who like and comment on your posts. Engage these professionals as appropriate. Some you may wish to connect with on LinkedIn. Others you may ask to get together for lunch or coffee.

Look at your blog not as the end game. Content is the currency by which relationships and a reputation are built. Social media enables you to use your blog to build relationships and a reputation.

Done right, blogging is the great equalizer for lawyers who have not had their day in the sun — yet. Rather than using the Internet as a broadcast medium, blogging enables good lawyers to develop a business the old-fashioned way: through relationships and a word-of-mouth reputation.

________________________

 [1] Peter Mahler, NEW YORK BUSINESS DIVORCE BLOG, http://www.nybusinessdivorce.com.

 [2] Brent Adamson, et al, The End of Solution Sales, HARVARD BUS. REV. (July-August 2012), https://hbr.org/2012/07/the-end-of-solution-sales.
 [3] Burkey Belser, Heavy Executive Level Reliance on the Internet for Finding and Working with Professional Service Providers, GREENFIELD/BELSER (Dec. 12, 2010), http://www.greenfieldbelser.com/articles/heavy-executive-level-reliance-on-the-internet-for-finding-and-working-with- professional-service-providers.

5 COMMLAWBLOG, http://www.commlawblog.com/.

 6 CANNA LAW BLOG, http://www.cannalawblog.com/.

 7 BILZIN SUMBERG’S NEW MIAMI BLOG, http://www.newmiamiblog.com/.

 8 CONNECTICUT EMPLOYMENT LAW BLOG, http://www.ctemploymentlawblog.com/.  
 9 CHICAGO IP LITIGATION, http://www.chicagoiplitigation.com/.
10 RETAIL PATENT LITIGATION, http://www.retailpatentlitigation.com/.

 Timothy B. Corcoran is the principal of Corcoran Consulting Group, LLC and served as the 2014 president of the international Legal Marketing Association. A former CEO, he specializes in helping law firm and law department leaders adapt and profit during a time of great change. He authors Corcoran’s Business of Law blog and can be reached at +1.609.557.7311 and tim@corcoranconsultinggroup.com.

_____________________________________

Every successful business must periodically review and adjust its service offerings in light of changing market dynamics. New entrants pose threats to entrenched players; emerging technology automates at a low cost what was once a lucrative manual undertaking; and leaders must engage in continuous game theory, acting and reacting to changing circumstances and competitors’ moves. In the global legal marketplace, rapid changes have increased the pressure on law firms and law departments alike to examine what and how they deliver legal services to clients, and leaders of these organizations must step up their game.

Redefining Strategy

In prior years, with near unlimited demand for legal services, legal services strategy required less rigor to identify new markets and new offerings. For law firm leaders, strategy was more closely aligned with branding and positioning — what do we want to look like in the future — with the expectation that whatever we choose to be, we will be. For law department leaders, strategy often followed the cadence of corporate strategy: decentralizing and aligning in-house counsel with business units one year; centralizing and consolidating legal services the next; but always with an eye on slowing the growth of overall legal services spending. As a result, the strategic planning process carried with it an unstated perspective: “We lawyers are here to stay, for what we offer will always be necessary.” The growth plans that resulted were quite often tactical in nature.

For law firm leaders, there was little need to engage in an organized process of internal advocacy, aligning the firm’s capital investments toward the practices, markets, and resources that generated the best return, for all practices generated increasing revenue year after year. Indeed, many firms have only recently begun to calculate profit margin at the practice or matter level, so it was often impossible or highly impractical to measure performance in any way other than top line revenue growth. Strategy plans, therefore, focused primarily on tactics to raise the firm’s visibility in target markets, employing vague financial metrics to measure performance, with minimal accountability for the partners expected to deliver results. After all, so long as aggregate revenues exceeded aggregate costs by a comfortable and increasing margin each year, the details of how firms reached their targets were less critical.

Tactics also ruled the day for many in-house law departments, as there was a prevailing expectation that legal services are, and always will be, a cost center rather than a profit center. As a service organization to its internal corporate clients, the law department’s reactive posture to whatever new strategy the corporate executives dreamed up left its leaders in a perpetual state of keeping up — hardly the best position from which to proactively organize and reexamine the role of the legal function.

The global economic recession that began in 2008 demonstrated beyond a shadow of doubt that legal services organizations are subject to the same economic realities of other businesses, and with declining demand — or, in the face of emerging substitutes and alternatives for the provision of legal services, at least declining demand for the old ways and old prices — law firms and law department leaders have finally recognized that engaging in more formal strategic planning is not just a good idea, it’s also most likely the difference between a thriving organization and one that is facing an inevitable decline.

Law firm leaders must account for both internal and external factors: not only what practices we want to offer, but what services are the market willing to buy, and at what price? They should no longer be deluded by the notion that “all revenue is good revenue.” Profitable revenue streams take precedence and deserve, and should consume, a greater portion of the firm’s resources and investment. Law department leaders, in turn, have come to realize that senior corporate leadership simply do not find credible that legal costs increase every year, in all areas, at a rate greater than other corporate costs, and cannot be predicted with any confidence, and furthermore that reducing legal spend will inevitably expose the business to greater risk. So, with these realizations, what are they doing about it?

Asking for Help

Perhaps the most notable change in post-recession legal organizations is the increasing influence of business practices and trained business managers to help guide strategy and operations. To be sure, many law firms and law departments have long employed experienced and sophisticated executives, some with long experience in law firms and others from industry. But by and large, these voices were muted, as those tasked with practicing law have always been afforded the benefit of the doubt when building an infrastructure to support their needs.

Second-guessing a partner’s demand for resources, or marketing tactics, or staffing preferences, or use (or avoidance) of technology tools, or approach to pricing and discounting, was deemed to interfere with and potentially impair the quality delivery of legal services and expose the law firm to client dissatisfaction at the very least. In recent years, a U.S. state bar ethics panel ruled,2 in so many words, that even allowing a business person to have a “chief” title implies that businesspeople have undue influence over a law firm’s practices, creating an ethical breach and a conflict between good business sense and the practice of law.

Leaders have discovered, however, that good business sense prevails. In law departments, there is a rise of legal operations executives tasked both with managing the day-to-day activities of the legal function and with finding ways to improve quality, throughput, and responsiveness while decreasing costs. Law firms have sought highly-experienced corporate executives to lead practices (sitting alongside the practice group chair who is, as often as not, deemed worthy of the role based on the ability to generate business rather than any observable capabilities in running a complex business) and the sophistication of those in longtime C-level roles, e.g., the CFO, CMO, or CIO, continues to increase as the duties of these functional siloes intersect at an increasing pace. One of the fastest growing roles in large law firms in recent years is the pricing director, which is often combined with supervision over project management and process improvement. However, law firm leaders are slowly but steadily recognizing that these are distinct business functions requiring unique skill sets.

Both law firm chairs and chief legal officers of law departments are increasingly turning to consultants to help them navigate the organizational and market changes. Just as some leaders who became rock stars and thrived in the earlier era are now embattled or have stepped off the stage, there are some notable consultants whose expertise was also attuned to a bygone era. Many, however, have long been encouraging firm management to adapt to the new economy, and can provide expertise gained from experience in industry or in other professional services fields and this expertise is in great demand. The role of a consultant may vary. In one organization, the management has a clear growth vision but need help selling it internally, and an objective and respected outside voice is additive. In another, the executive committee may have good intentions, but has a limited understanding of how to conduct a rigorous strategic review or initiate enterprise-wide multiyear business process improvement efforts, so they seek specific subject matter expertise. Still others may seek a consigliere, as trading ideas with a respected and independent peer can offer more benefits with fewer downsides than revealing confidences and asking for help from one’s law firm partners or law department senior staff.

Change Management

A principal role of a consultant is to help the organization embrace change. There are plenty of good ideas, but many organizations falter upon execution because of a poorly designed process to engage stakeholders, or they fail to factor in the how when devising the why and the what.

The chief legal officer for a brand name multinational corporation recently solicited proposals for a consultant to assist her in reengineering the global legal function. During the open Q&A session with prospective consultants, she shared that while her deputies were aware of the initiative and had offered their unconditional support, none would be involved in the process beyond providing access to financial information and easing access to interview internal stakeholders. Furthermore, her internal clients in business management had no idea that this effort was under consideration, and their participation was deemed unnecessary to produce a quality recommendation.

We advised that the project was unlikely to achieve glorious success because key stakeholders, namely the deputies whose organizations would be most impacted by any reorganization recommendation, were not part of the process and would most likely, if not intentionally, obfuscate any investigation that didn’t confirm the sensibility of keeping their empires intact. Furthermore, the internal business clients, whose service posture would be disrupted if a new law department organizational chart were to be sprung upon them, very likely have critical insights that could inform the analysis. She was incredulous, believing that the point of hiring outside consultants was to avoid distracting internal stakeholders.

An independent consultant can ask questions, interview stakeholders, conduct objective and unbiased research, and make recommendations without undue political influence. The best outcomes, however, result from a participatory and cross-functional process in which stakeholders from across the organization are involved; when there is a clear communication plan about the effort underway that helps those not involved in the details stay abreast of progress; and when those who are impacted have the opportunity to see both how decisions are made and what data supports the various conclusions. This is often contrary to the paternalistic mindset employed by many managers, where information is closely guarded. The rank and file, perhaps via designated representatives, can and should have the opportunity to offer insights into the day-to-day operations of an organization, and to illuminate and often dispel beliefs leaders have about “how the sausage is made”; this creates more informed analysis and acceptance on implementation.

Building a Data-Driven Culture

Good business leaders and consultants rely on objective data to inform decisions. Even when data are limited, such as understanding how a competitor’s cost structure impacts its pricing strategy, there is still a framework for plugging in whatever data are available and assigning a corresponding confidence level. Many legal organizations lack data. Law departments are beginning to understand the power of analyzing years of electronic billing records to identify quality and performance metrics and to distinguish between reliable and unreliable service providers. Law firms who have long treated “knowledge management” as a document archiving exercise now embrace cost accounting and experience tracking in order to better staff and price future services. Even so, data often still take a backseat in the strategic planning decision framework.

In a recent strategic planning effort for a mid-sized U.S. law firm, there was strong resistance to including any voices other than management committee members and top rainmakers. The partners felt that sharing any financial data, revealing any organizational “dirty laundry,” or even exposing strategic deliberations to anyone outside this group would likely generate disastrous consequences. These partners had yet to learn what corporate strategists have long known: Insulating those who devise strategy will create an echo chamber. Strong opinions will override sound analysis; political considerations will gain undue influence; confirmation bias will lead to analysis that supports the status quo and minimizes negative input; and, not surprisingly, few decisions will be made that negatively impact the leaders devising the strategy in any material way.

In a law firm this challenge is particularly acute: Partners are also owners, and they feel they have a right to assert their voice in business strategy, so a common result is that partner preference prevails over sound business judgment. The largest waste of time in a law firm strategic planning process is to allow partners to endlessly debate esoteric concepts when neither side has supporting data, and no matter what’s decided the partners have veto power if they don’t like it. The single greatest approach to overcoming uninformed partner input is to have relevant data on hand that supports a conclusion.

To be clear, partners may make decisions that are not in their economic self-interest, and many do, but these can and should be conscious decisions. For example, many law firms continue to offer practices that contribute little to the firm’s bottom line and provide minimal cross-sell or upsell potential. While allocating capital to a different practice may generate a better return, there’s nothing wrong with maintaining a legacy practice that is closely tied to a firm’s history or that occupies a longtime partner who is nearing retirement. Adopting sound business practices and relying on data to inform decisions does not mean that all decisions must be based solely on short-term financial benefits.

It is often the role of the consultant to advise leaders when their data infrastructure is lacking… and it often is. Still, a good strategic planning framework can help both to analyze external and internal forces and to generate reasonably informed outcomes. But nothing replaces building a data-driven culture where information, and the processes and tools necessary to capture the information, are deemed critical to the organization’s success rather than costly distractions.

Revisiting Incentives

The challenge of aligning and realigning incentives is greater in law firms than in law departments. A partner who has learned over time how to maximize the firm’s compensation plan to generate a healthy income year after year is generally resistant to any change, even one that on paper can be demonstrated to be more lucrative for the partner. The inherent risk that a change might reduce a partner’s take, even balanced against the corresponding potential to generate greater rewards, more often than not leads to stasis. A good consultant understands that when an organization’s compensation plan is in conflict with the firm strategy, the compensation plan is the firm strategy. Devising a strategy requires an examination of current and potential incentives to determine where there is alignment and where there is conflict. Conflict must be resolved, and this can be done most effectively by demonstrating with reliable data the positive outcomes associated with new behaviors.

Law department incentives are also in play, however. In corporations where legal costs are allocated to the business units, the executives in charge care deeply about the management of legal spend. When these internal business clients participate in some variation of a 360-degree performance evaluation of in-house counsel, their satisfaction influences in-house lawyer compensation. It’s now a fairly common factor in general counsel compensation that adherence to a budget has financial benefits or consequences. When devising a strategy to better serve internal clients, aligning the incentives of those managing the effort will help maintain focus.

Sustainability

As with any strategic plan, a law firm or law department must revisit it periodically. However, while tactics will surely change, and market dynamics may change the emphasis and direction of investments over time, the fundamental and underlying strategy rarely lurches dramatically in every three- to five-year cycle. A good consultant can help minimize the impact of short-term concerns and maintain the focus on matching the organization’s long-term capabilities to the relevant sustainable market opportunities. The secret to effective strategic planning is not all that elusive. It requires a rigorous process, data to guide decisions, wide stakeholder participation to help pave the way for implementation, and thorough communication to ensure transparency. A seasoned consultant can help legal organization leaders adopt this approach and can contribute to the analysis and recommendations. Done well, the impact of a strategic plan will be meaningful and material. Done poorly, however, strategic planning can be a costly distraction.

2 Opinion 642, TEXAS CENTER FOR LEGAL ETHICS, http://legalethicstexas.com/Ethics-Resources/Opinions/Opinion-642.aspx.

 Michael Roch is the Extended Enterprise and Professional Services Advisor at Internal Consulting Group. ICG is an ecosystem of more than 4,500 consultants worldwide. He also serves as Managing Director of allianceboard and as a Partnerships Advisor for Performance Leader. Michael advises on all aspects of domestic and international strategy, organizational structure and governance, and international mergers and alliances. He also advises law firms and other professional partnerships on all aspects of their partnership organization, in particular partner remuneration and profit sharing. Michael’s clients include boards, joint ventures, and strategic alliances, primarily in the professional services, financial services, energy, and technology sectors, across more than 40 countries in Europe, North America, sub-Saharan Africa, and Asia. He is a member of the Academy of Management, the Association of Strategic Alliance Practitioners, and the Managing Partners Forum in London. Qualified as a certified public accountant and New York attorney, Michael holds a J.D. and a Master of Accountancy from the University of Denver. He started his consulting career with KPMG in the U.S., followed by 10 years as an international corporate lawyer, most recently with Norton Rose Fulbright between London and Frankfurt, before returning to the management consulting profession. Michael is fluent in English and German

_________________________________________________

.  Hiring a Consultant or Advisor

 “Who cannot give good counsel? ’T is cheap, it costs them nothing.” (Robert Burton, Anatomy of Melancholy, 1621)

Law firm leaders get input, information, ideas, suggestions, and advice from myriad external sources, including conferences, universities, colleagues of managing partner, information distribution lists — and the list goes on. Internally, the leaders of the most successful firms often have good systems in place, good people to run them, and good partners who provide constructive input regarding how the business should best be run.

With all of this knowledge, expertise, and experience around, why would you wish to engage with management consultants? It’s a fair question, given the amount of scrutiny (and sometimes worse) you may expect from colleagues anytime you suggest that your law firm may need assistance from the outside. This chapter addresses:

1) Why law firms hire consulting firms or consultants in the first place;

2) Subject matter areas for consulting that add value;

3) What to expect from each of the three broad approaches to consulting;

4) What a typical consulting process looks like; and

5) How to hire a consulting firm or consultant (and how not to). 

1) Why Law Firms Hire Consulting Firms

 Even the largest firms with significant internal resources in finance, human resources, marketing, business development, knowledge management, and operational management eventually end up with opportunities or challenges that neither their usual external informal networks nor the internal management team can solve. These issues usually have one or more of the following attributes:

The topic is too big: The expertise within the management firm simply isn’t broad or deep enough to resolve the topic. For example, the management team knows that knowledge management is an ineffective way to drive down costs, and the practice heads and management team have done all they can do within their level of expertise. Consulting firms that are subject matter experts in a given area can fill in the missing expertise.

The topic is too politically sensitive: The expertise may or may not exist within the firm, but too many of the partners involved in developing a solution either can’t sufficiently separate their own interests from those of the firm or will be perceived by their other partners as having an axe to grind. For instance, changes to how partners are remunerated or how their performance is measured and assessed often falls into this category. This requires consulting firms that not only have the subject matter expertise, but are also experts in stakeholder management and process design. This leads to designing partner involvement interventions that achieve a resolution passing the required voting threshold.

The topic is too important to handle in-house: The expertise may exist, and the topic may not be all that controversial, but the risk of getting it wrong is so great that external validation helps weld partners to a decision that they will comfortably implement. For example, a firm has been approached by a larger firm that seems like the ideal merger partner, the financials look good — but there is lingering doubt about whether the combined platform really will increase profits or whether the partners of both firms really are as culturally — behaviorally — compatible as the initial meetings and cocktails suggest.

There are too many topics: The management team knows there are many facets to a single challenge or too many opportunities to pursue. For example, the firm has experienced sliding margins for the last five years, its market is contracting, and prices (rates and structure) are under increasing pressure. Do we have a profile problem, a business development problem, a pricing problem, a problem with our culture that our partners don’t sell enough, a cost problem, a people problem, a partner underperformance problem, some of the above, or all of the above? This scenario requires less of a deep subject matter expert, but rather a business consulting team that understands how law firms work, with an analysis methodology that achieves a hard diagnosis, and helps management break down and prioritize the challenge.

Management capacity is too limited: Sometimes the challenge and the path to resolving that challenge are both clear, but the firm simply doesn’t have a sufficient number of bodies to carry out the actions required. Depending on the nature of the challenge, a consulting firm can serve as a stopgap by seconding one or more consultants to turn the situation around and to then hire someone to be employed by the firm.

2) Subject Matter Areas to Add Value

There is no consulting firm capable of advising on every business challenge or opportunity. The subject areas are endless, from blue-sky thinking about a possible new practice to enter to working hands-on on the day-to-day implementation of a new robotics process. 

The following broad categories provide a small cross-section of the spectrum 

Strategy: This is ably covered elsewhere in this e-book. Topics might include:

– Where to compete and how;

– Finding growth markets and coping with declining markets;

– Entering new practice areas or getting out of unprofitable ones;

– Geographic strategy (cities, regions, and countries) — getting in, working profitably, or getting out;

– Innovating how work is done and progressing the firm’s operating model;

– Developing the firm’s strategic intent and business model;

– Implementing strategies to reach that intent; and

– Designing an M&A strategy, and deciding whether to merge.

Relational capital: This includes everything that is market-facing, such as:

– Increasing business development returns;

– Managing key client relationships;

– Developing referral sources;

– Brand building and profile raising; and

– External communications.

Service platform: This area covers everything having to do with service delivery, such as:

– Developing and growing the firm’s portfolio of services;

– Pricing, alternative fee arrangements, and pricing management;

– Delivery processes such as legal project management and process mapping;

– Knowledge, intellectual property, and innovation development;

– Intelligent process automation / robotics; and

– Sourcing, flexible working, and outsourcing of legal work.

Human capital: This area covers a number of topics related to talent (after all, law firms are, first and foremost, people businesses), such as:

– Winning the war on talent;

– Recruiting the best partners, business managers, and fee earners;

– Leadership development and assessments;

– Diversity development;

– Learning, professional development, and training;

– Talent management and human resources; and

– Internal communications.

Organization: This covers everything around the organization that supports the firm’s client work and includes:

– Organizational design and structure;

– Decision-making, accountabilities, and overall governance;

– Incentives and remuneration of partners and senior managers;

– Partnership structure;

– Culture, values, and behaviors;

– Management system; and

– Succession planning.

Operations, finance, and risk: These cover all of the back-office functions, such as:

– Information technology;

– Facilities management;

– Risk management;

– Financial management;

– Administration; and

– Sourcing and outsourcing of non-core business functions.

The above can serve merely as examples of consulting areas. Each area will have hot topics, trends, and themes and will differ somewhat from country to country. For example, a country with a closed legal market that is opening up to international firms will see a flurry of market entry, strategic, and merger advice; in countries with mixed ethnicities, law firms seek consulting in relation to talent, diversity, social mobility, and economic empowerment.

No matter what the subject matter area, there often are more subtle topics to be addressed, such as:

–Collecting fact bases and evidence to support recommendations. Through research and market knowledge this may extend to peer group comparisons, sector analysis, client and market opinion gathering, etc.;

– Identifying the options that are realistically available, the consequences of taking such courses, promoting the preferred option, and offering clear rationale for such preference;

– Focusing the minds of partners and other stakeholders on the things that are important and relevant;

– Leading an intellectual journey designed to reconcile (if possible) disparate views and/or preferences and/or prejudices into a common or substantial majority understanding;

– Identifying blockages (whether in systems, organization, or culture) that stop firms being able to change or improve themselves, and showing what must be done to make it happen. Paying for consultancy is wasteful unless the people who will have to do things differently understand what must change, why it must change, and, crucially, agree to do it;

– Helping leaders to understand what must be done to implement the solutions successfully; and

– Working with leaders hand-on as quasi-internals to help achieve the desired outcomes.

All of that said, a good consulting firm will not seek to push their product or service, and won’t try to put your problem into their box; instead, the lead partner will seek to deeply understand the needs of the firm and its management team, and then craft a process by which their challenges can be overcome.

3) What You Can Expect

A good consulting firm should always distinguish between a.) the subject/content area of client’s challenge or goal, and b.) the process by which that challenge is overcome or goal is realized. The last section dealt with the subject/content area; this section explains why the process is important and the type of process that a law firm should expect of a consulting firm.

The process by which a consulting firm helps firm management overcome a challenge or realize a goal is critical for several reasons. First, while firms in similar market positions and of similar sizes may have similar challenges and goals, each firm is different; a pre-packaged solution often does not work out of the box. Second, it is highly likely that the firm’s management, with or without partner consultation, has already thought about an issue and is calling the consulting firm because the firm is stuck and can’t make progress on the issue. Third, the consultant’s first rule of engagement is that s/he must do no harm, and proper advice can be given only once the firm and its challenge are understood fully and deeply.

We distinguish between three types of consulting engagements: a consulting project around a given set of challenges (perceived or real) or goals, retained advice, and ad hoc advisory work. We consider these in turn, followed by a note regarding implementation and related services.

4) Projects-Based Consultancy

Consulting takes various forms, depending on the client’s situation and needs. Our organisation usually takes on discrete assignments that have multiple stages or overlapping/parallel elements, and can range from two weeks’ duration to 24 months. With such large assignments, it is essential to have a clearly defined objective and a detailed project plan agreed upon in advance with the client, and there will usually be a specified outcome. Most consulting projects — whether it’s a few meetings with experts or a project lasting 12 months or longer — usually have the following five broad components:

First, definition and diagnostics: This simply asks the following question: “What’s going on here?” The purpose of this element is to determine the actual underlying challenge, and whether this challenge is the same or different from the one perceived by firm management. Second, this element seeks to fully understand this challenge or, depending on the objective, to understand the goals that the firm needs to achieve relative to its competition. Third, depending on the project, this element also seeks to validate assumptions, develop and validate hypotheses, and to uncover insights that help develop options for a solution to the issue in the steps that follow.

Depending on what needs to be done, this element may simply take the form of a structured management interview, though additional assessment work is likely (financial, client, process, culture, talent, etc.). Even our best-structured assessment tools need to be tailored to each law firm in order to accommodate its unique features, and often to accommodate the lack of sound management information that goes beyond basic financial data.

For a major project that seeks to change how partners operate the business (and their practices) or to help a partnership make fundamental decisions about their future, we usually encourage that partners outside the firm’s management are involved early in the diagnostics process.

If this initial stage discovers that the problem the firm’s management wants the consulting firm to address isn’t the most important issue, a good consultancy will not blindly carry through the project that was sold but have a candid discussion with the client about a fundamental adjustment to project scope.

Second, developing and testing options: Unlike in law, in business there usually is more than one right answer to a challenge or more than one way to reach a goal – it is the constraint of resources (partner time and money available for investment) that often helps determine the best way ahead. Developing different options and testing which option will provide the maximum benefit to the law firm with the least investment of partners’ cash and time is a better approach than to provide one solution and ask the partners to accept or decline this single option. In our experience having worked with major law firms in more than 50 countries, we find time and time again that most well-meaning initiatives put forth by firm management end up not being implemented or adopted by partners because firm management concluded on a single path too early.

Third, involving partners in decision-making: Most readers of this e-book will belong to law firms with 150 or fewer partners; most if not all partners will know one another and expect some degree of understanding about what management is doing and why. “Horror stories” within law firms abound of Big 4 accounting firms where “partners” are employees who are paid high bonuses but who do not even have a say when their firm undertakes a major merger or acquisition, let alone a lesser decision to acquire a certain piece of software.

We have seen even the simplest measures fail because an insufficient number of partners were involved in the creation of the solution. Diversity and social mobility initiatives are a key example where well-meaning and well-designed initiatives by heads of human resources fail to be implemented properly and, thus, provide a questionable return to the firm simply because the partners were merely informed about how that initiative will add value to the firm but are now sufficiently involved in understanding and shaping how that initiative will change their practices.

The approach that will work best really depends on the size, style, and sophistication of the firm, and the nature and complexity of the problem. In some cases, a factual and directive report is all that is required, but the range of issues that a consultancy deals with tends to be contentious and involve a range of overlapping factors (e.g., culture, governance, and process). Thus, a bespoke engagement plan will need to be designed that steers over time a course of fact and opinion gathering; stakeholder (client, staff, partner) involvement; and communication, which will lead to consensus and usually a vote. The “consultation” is particularly important: People want to feel that they have had a chance to contribute to the debate, air their views, and feel they are being taken into account. You cannot satisfy everyone, but even if the final outcome is not everything that the partners had wanted, they are much more likely to accept and support if they feel that the consultation was fair, open-minded, thorough, inclusive, balanced, and transparent. If you fail to get the consultation right, then the outcome will feel like an imposition; with people of high intellect and egalitarian principles, you can expect heels to dig in!

Fourth, implementation testing and day-to-day implementation: A consulting firm usually assists with implementation in some way, whether by pilot testing the implementation; conducting the full, hands-on implementation as part of the internal team; training and coaching firm members through their own implementation; or simply reflecting the progress of implementation with the relevant members of the firm.

Fifth, establishing and managing feedback loops: The above elements rarely work sequentially; overcoming a challenge or reaching a goal often requires the above elements to be applied iteratively. For instance, a high-level development of broad options for a solution may follow an initial shallow-dive diagnosis, followed by additional analysis work as options solidify and others are discarded. Various groups of partners and other stakeholders may be involved at different stages of the consulting project. Feedback and learning loops may be agreed upon in advance or throughout a project as the scope changes. Note that the above five elements apply very broadly and in principle to any consulting project, whether it’s as operational as a major IT implementation of a new practice management software, a change to how partners develop business, or as strategic and fundamental as a change of the partner remuneration system. The work to be carried out and the exact structure of each element will of course vary widely given the law firm’s objective for the project.

Process design: A law firm should expect its consulting firm to assist in designing a process that helps achieve the client’s objectives so that the subject matter advice provided fits the business, is capable of implementation and takes hold within the firm. This is to ensure the law firm can earn a return from its financial and time investment in the acquired consulting services.

Project management: We stress the importance of project management in consulting projects. A well-managed project, following accepted project management norms, almost always achieves better outcomes and does so more easily, with less time wasted, than a project that is “defined as we go along.” Besides the substantive and process expertise, you should ask your consulting firm about its project management expertise, skills, and approach.

Retained Advisory  

Sometimes the needs are of a different nature, and then it may make sense to retain a consulting firm or very senior advisor for a period of time. This works best if the managing partner or executive committee is to have an ongoing sounding board providing an external perspective on a myriad of issues that can’t easily be distilled into a consulting project.

The reasons may vary; the three most common retained advisories we see are:

First, most firms now have at least one permanent external advisor who really understands the business, firm management, and the partnership to provide impartial advice on a broad range of strategic, tactical, and operational business issues. This may take the form of a consulting firm (with access to a number of partner experts within that firm), an individual consultant, or a non-executive director.

Second, consultants may provide ongoing implementation advice following a consulting project and to help firm management reflect on necessary changes until a new idea, process, or decision is implemented the way it was intended and in the best, most profitable way for the firm. For example, it is invariably helpful to any remuneration committee or other decision-maker for the consulting firm to ensure that change to the system of how partners are paid is being implemented as intended (and has been “sold” to the partners!).

Third, we have seen a number of firms with a single trusted external advisor who manages the relationships with all other advisory firms to guarantee a consistency of approach and to ensure that all consulting firms advising the law firm provide value for money.

Common also are a small number of design-and-implementation projects that are executed by small teams alongside the retained advisory. 

Ad Hoc Advisory

Sometimes there is the need for a looser, more ad hoc relationship. A new managing partner may wish to have some advice on how he should shape his agenda or how she might seek to convince the board on a particular approach to an issue. There is plenty of this level of advice being given, which tends to be paid for by the hour or the day. Sometimes this advice may be given more formality and delivered as part of a retained advisory, even as a coaching plan, with some specific objectives agreed upon.

Sometimes a managing partner merely needs the comfort of hearing about the experiences of someone who has done it all before as a managing partner. There are a number of eminent ex-managing partners who have offered a lot of help, comfort, and reassurance by selling the stories of the very real scars on their backs.

Using Consulting-Related Fields for Effective Implementation

Implementation work means helping to get things done. For example, when a new invoicing and collections process has been designed and decided upon, implementation is about ensuring the process works, the IT works, the partners comply, and that the new process works in the most effective and efficient way possible. The consultants who designed the solution often do this implementation work. It is usually most effective for this work to be done in conjunction with disciplines that are closely related to consulting. Often the line of what is “consulting” according to its textbook definition and what is a related service can be fluid. In our experience, it makes little sense to be purist about this; what matters is what helps the client overcome the challenge or reach the goal, not what label we as professionals put on the type of work being done.

Some of these related services are covered elsewhere in this e-book; we only touch on a few examples here:

Training: This involves the transfer of skills. In our experience, law firms and lawyers absorb knowledge easily; acquiring skills is more difficult, especially if this involves changing how lawyers work in their day-today client matters. For example, implementing a consulting project about how partners should price their services to achieve higher matter profitability nearly always involves an element of training in assessing price sensitivity and using an IT tool for discount/premium analysis for the implementation of the consulting project to be effective.

Coaching: In the consulting context, coaching involves a one-on-one or team-level resolution of barriers that hold back that individual or team from achieving certain goals. In the pricing example above, one-on-one sessions with practice leaders can help them work with and manage those partners who are reticent to engage with a discount/premium analysis for their matters.

M&A and executive search: When a law firm seeks to acquire another firm, be acquired, or seeks a merger of equals, it may engage a consulting firm that specializes in M&A advisory services; it may also engage with an executive search firm, or it might try a combination of both. When opening up in a new city or seeking to extend into a new practice area, the firm may also engage with an executive search firm to find the right talent. This is a good and effective route. Here, the lines of where consulting ends and M&A advisory or executive search begins may be fluid and not transparent. It is best if the firm’s advisors work together to define and achieve the best outcome. Good M&A brokers and executive search firms will work with firm management and its management consultants, accountants, and other specialist advisors to ensure that the project is well defined and that the firm’s objectives are achievable. A battle among advisors for “the lead” rarely provides a good outcome for the client.

Interim resourcing.  For some types of needs, it is more cost-effective to hire an interim manager or resource than an entire consulting team. An interim resource can add value where the challenge or goal is well defined, the firm has agreed on a path to action, and the interim manager is to lead the implementation. The key challenge for most interim managers is that they very quickly become part of the firm’s internal political system and thus may be viewed by some partners as “having an agenda” Or may lose their effectiveness because they start playing firm politics. Experienced interim consultants and professional interim managers know well how to best retain their “external internal” status, implement the change that is needed, and then turn their brief over to a permanent hire before going to the next assignment.

Non-executive directors.  A number of large firms have hired one or more professional non-executive directors. Typically, these are retired executives, providing deep leadership and management expertise form outside the legal industry and can add a tremendous amount of value to a law firm leadership team. They often work alongside retained consultants or help senior management manage the value-add consultants are intended to provide. 

What You Should Always Expect

No matter how a consulting firm or solo consultant works with you, you always should expect that the consulting firm is focused on your firm’s challenges and goals, and that the consultant has your firm’s best interests in mind. This sounds like “motherhood and apple pie,” yet one of the biggest complaints that we hear from our clients about working with consultants is that the additional hour or the additional day charged is more important than the client reaching his/her goals. It is appropriate that consultants look where else their organisation can add value; prioritising selling the next project is not. 

5) How to Hire a Consulting Firm or Consultant

In this section, I will provide an approach that works well for most law firm clients.

Initial consultations: When you know you’ve got an issue but you don’t quite know how to define the challenge yet, or if you know you want to achieve something different from your predecessor but you don’t quite know how to go about it, it is perfectly legitimate to call on a consulting firm or a solo consultant. You can sound them out about how they would approach the topic if they were in your shoes once internal resources and the thoughts by retained advisors are exhausted. That initial conversation, or even two, should always be free of charge, as the consultant should be pleased to build a relationship with you. If the problem resolves itself in these conversations, fine. Undoubtedly you will show your gratitude and call that same consultant again when the next topic comes around for which external input may be valuable.

Defining a scope: If these informal soundings are not sufficient, it is most effective to develop a short brief and get input from your consulting firm of choice. If that consulting firm is an expert in the subject matter, it will be able to assist you in shaping project parameters that help you overcome your challenge or achieve your goal. As is true for any type of project, you then agree on a scope and a fee basis for the work to be done if it’s a project (see above), or the terms of a retainer or indeed a combination of the two along with a success fee, as appropriate.

Defining objectives and scope is critical, no matter how the consulting firm wishes to price the work to ensure the law firm in the end gets the value it wants.

Consulting fees: Consulting firms often charge by the hour or the day. This is appropriate for work where the scope cannot be defined easily or if there are too many “known unknowns” in the work to be done. In most cases, any efforts-based pricing will put the interests of the consulting firm squarely against the interests of the law firm; the consulting firm will want to maximize days spent, and the law firm will want to minimize the time spent to save costs.

We posit that in many cases, a clearly defined scope and a fixed fee or retainer, sometimes coupled with a success element as appropriate, often is fairest to both sides. This is because this approach focuses on the challenge to be overcome or the goal to be achieved, not the inputs to get there. This approach helps establish clarity at the outset, allows both sides to plan their cash flows, and can avoid often tedious discussions about why our team needs to involve two or three team members.

This approach does require for both sides to be willing to have early and candid discussions about scope changes.

Competitive bids: It may be helpful to get input from several consulting firms and to select the firm that provides the best approach combined with the best price. This approach works so long as the challenge and goals are well defined. In our experience, we can achieve the best results when the client remains open to changing its approach, both on how it wants to work with the external firm and on its selection process. Rigidity often provides a result that falls short of what the firm hopes to achieve. I remember vividly receiving a request for proposal (RFP) to advise a firm on changing how partners are paid; I had to go as far as advising the managing partner that his partners would likely depose him if he insisted on the methodology provided in the RFP. We then could suggest an alternative approach that ended up not only saving the firm money but also achieved a high-quality result. 

Approach, methodology, technology: We distinguish between approach and methodology that the consulting firm intends to apply to the work at hand; both are very important. There is a big difference in approach and result among consulting firms that labor through structured workshops, rely on a lot of data mining, or rely solely on the “grey hair” and experience of its consultants. Each approach is appropriate sometimes, and likely a combination will help achieve the desired outcomes.

The methodology that a consulting firm applies is equally important. This is because the field of consulting does not have an easy reference point similar to codified law or generally accepted accounting standards that define lawyers’ and accountants’ advice they provide to their clients. Experienced consultancies continuously refine their methodologies as their main reference points in how they provide and tailor advice to help solve their clients’ challenges. For example, we often rely on a proprietary assessment methodology that allows us to get to the heart of any professional services firm quickly; the methodology combines the Balanced Scorecard, Intellectual Capital, and the McKinsey 7S, and is uniquely suited to law and other professional services firms. We also have developed a certain way of designing our partner workshops in a way that is particularly engaging (and disarming!) of highly intelligent and equally critical law firm partners.

Proprietary analytics technology plays an increasing role in consulting projects on the operational end. This includes legal project management, law firm cost management, e-billing effectiveness, and the like. Less “legal” areas include pipeline effectiveness analytics, talent turnover cost projections, and robotics /intelligent process automation implementation. 

In short, the firm’s approaches, methodologies and technologies need to be appropriate for the challenge to be overcome or goal to be reached, and both approach and methodology need to resonate with the law firm’s approach, culture, and way of doing business.

Additional things to expect in a proposal:

 In addition to scope and fees, any proposal should contain a clear understanding of what value-add the law firm seeks to gain from the consultancy’s involvement. Measuring this value-add sometimes is simple (“help us achieve a reduction in WIP days by 20 days”); sometimes it is not (“help us overcome our non-confrontational partner culture”). Where hard financial measures are difficult to come by, law firm and consultancy could agree at least on a qualitative indication of what the client hopes to achieve.

The consultancy also will usually spell out a short track record that proves the consulting firm’s expertise in handling similar issues. Where relevant, specialist, or professional qualifications of the team members also should be explained. In our experience, it is helpful to have a team of several qualifications working with a client organization, whether this is in consulting or in accounting, psychology, finance, law, economics, or banking, just to name a few examples.

Terms of business should include assurances of confidentiality of your sensitive information for a number of years. It is also common for consultants to ask that the client’s name be included in their pitch materials but, if it’s non-competitive, to keep the nature of the work confidential. We do make proper introductions to existing clients once a new client has made the “but for” decision to work with us.

Some firms provide an unconditional satisfaction guarantee for most work. We are comfortable providing this because we are experts at what we do, and we can always deliver against the scope upon which we have agreed. This approach also sets up early discussions if there is dissatisfaction looming instead of a soured relationship at the end of the engagement.

 A Final Word on Consultancy

 A statement of the blindingly obvious is that no law firm should seek to spend money unnecessarily on engaging outside consultants. Some larger firms have dedicated internal resources in order to help them find most answers for themselves. On the other hand, many firms labour on, making unnecessary mistakes and missing opportunities because the MP or some of the senior partners have a jaundiced view of consultants. When clients have had poor experiences with consultants, this is so often for one fundamental reason: usually it turns out that the client and consultancy didn’t work hard enough to clearly spell out expectations, outcomes, and value-add the work was to achieve at the outset of the engagement. Sometimes, of course, insufficient expertise by the consultancy of the subject matter, knowledge of the legal sector, or an understanding of how professional partnerships work is also to blame.

Faced with a real problem impacting competitive capability that is beyond the ability, experience, and resources of the firm to resolve in-house, the timely involvement of a properly selected consultancy can produce huge value, open up possibilities that were closed, and increase the satisfaction and sense of purpose of the partnership. Not to overstate the case, but having the right people on your side can even help ensure survival in the most intensely competitive markets we have ever experienced.

John Malpas Editor Global Legal Post. He was the publishing director of Legal Week, which is one of ALM Media’s flagship titles. He was previously editor and editor-in-chief of Legal Week and was a senior member of the team that launched the magazine in 1999. Since its launch, Legal Week has established itself as one of the world's leading media brands catering for the international business law community. This article is being republished with the permission of ALM Media.

Bill Carter took leadership of ALM as president and chief executive officer in March 2012. Carter has championed various acquisition strategies advancing the growth and expansion of markets ALM serves. In 2013, Bill was honored as a C-Level Visionary with a Folio: 100 Award. He joined ALM from Thomson Reuters, where he was senior vice president of the Small Law Business Unit since 2010 and led its successful reorganization and growth. An accomplished expert in the digital and legal services industry, he has also driven significant value creation as a senior executive at LexisNexis, Epiq Systems, Gerson Lehrman Group, and GES Exposition Services. Carter earned a B.S. in Computer Science at Tulane University, a Master’s in Computer Science from Georgia Tech, and an MBA with honors from The Wharton School at the University of Pennsylvania.