Cheap is OUT; Value is IN: Communication and Trust Make it Happen

I have learned that trying to guess what the boss or the client wants is the most debilitating of all influences in the creation of good advertising.

Leo Burnett

I took a bit of liberty in using Mr. Burnett’s quote, applied to the advertising industry.  But the concept, if a word or two is changed out, applies just as well to the attorney/client relationship.  I have learned that trying to guess what the boss or the client wants can be a most debilitating influence in the creation of a healthy attorney/client relationship.

So what does the in-house lawyer client want from her outside counsel? In-house lawyers want VALUE for their money, not cheap fees.  But what does it take to deliver value to an in-house team of lawyers, especially a small law department with little in the way of benchmarking tools and fancy matter management systems?

Upon arrival at a new company, a good in-house lawyer takes some time to learn the business.  The newly retained outside lawyer should follow the in-house lawyer’s lead and do the same. The general counsel should expect the outside lawyer to research the company as much as possible using public sources, then spend some time with the general counsel to learn how she does business; gauge her interests, plans and strategic goals for the department; learn where she (and her department) fit into the business; learn how outside counsel has been used in the past; and find out where she sees the future of the inside/outside “partnership.”

Then it is time to learn how the actual business operates - what does it do, how does it do it?  What are the business weaknesses and where does potential legal exposure lurk? The general counsel should introduce the outside lawyers to the key players in the organization. By this I do not necessarily mean the C-Level folks or even vice presidents. Rather, the general counsel should introduce outside lawyers to the people with whom the outside lawyers will regularly work on matters. The small department lawyer must leverage the business resources to provide the needed information to the outside people so that her day is spent performing legal work, not gathering documents and performing administrative tasks to keep the outside lawyer busy. 

Integral to creating a relationship based on value is developing a protocol for communication between the outside and inside legal teams, one that may include the business people. Word of caution: do not open the floodgate by inviting the business client to call the outside lawyer “any time they have a question.” Your outside legal team will be on the phone constantly with your business people and they WILL bill this time.  So, the inside team should always serve as the conduit for contact with the external legal resources. Open communication will serve the general counsel well in several ways:  She will be personally (or through her team) aware of potential legal issues developing; she will have an opportunity to put an internal resource on the problem right away to try and resolve it before it requires expertise or time commitment beyond that available to her via in-house sources; she will be aware of the matters that her team is addressing; and, billings will be monitored, controlled and minimized. 

A very important element for a value based inside/outside relationship is the development of trust.  Trust is gained on both sides through positive day to day, or issue to issue, experiences. Each side of the relationship must be wholly open and communicative about their thoughts, concerns and expectations. There is a social element to building trust as well. There is nothing wrong with spending down time with your outside firms. However, it would be terribly foolish to compromise your decision making on behalf of your client due to the social interaction you have with your outside firms. Lawyers, though, are particularly adept at keeping business and pleasure separate to ensure such compromises do not take place.

  

As a legal matter develops, it can change, the expectations, goals and expected outcomes and means to the end may need to be adjusted as a result. Neither side should bury their respective heads in the sand and avoid uncomfortable conversations. For a healthy, long-term relationship, expectations and deliverables must regularly be updated to reflect changing circumstances.

 

In closing, let me reiterate the most important points mentioned above – communication with and education about the client, about how the client operates, about expectations and about changing game plans.  Following these elementary rules will go a long way in developing and nurturing a valuable, long term, trusting relationship.

Intellectually Honest Discourse

I love a good argument.  There is almost nothing better than stretching your mind while engaged in an open and honest discussion with someone who views things differently than you do.  It is most fun when engaged in the so-called taboo subjects that are important in a big picture sort of way, such as religion and politics.  These topics evoke deep emotion in people and make the challenge of intelligent and honest discourse all the more interesting.

I have a very good friend who does not share my religious beliefs or my political views.  One might describe the two of us as polar opposites – 180 degrees apart.  The interesting thing about our relationship is that, because of a lot of intellectually honest and intelligent discussion, we seem to have influenced each other on certain matters to within 45 degrees of the other.  In other words, because we are able to discuss very controversial and emotional issues that cut to the very core of our  belief systems in an honest, unemotional and respectful manner, we have brought each other around a little bit to the other’s way of thinking.

The two of us have compromised in the best sense of the word, not falsely by claiming to be in agreement for the sake of keeping peace, but having been truly moved to a new way of thinking about the issue.  This is a wonderful experience.  It is only possible if each of us open our minds to the possibility that we may not be absolutely right about everything all the time.

Having meaningful discussions requires openness, vulnerability, respect and a true and pure willingness to contemplate the argument presented by the “opposing party.”  There can be no sarcasm, no red herrings, no manipulation.  Raw honesty is required.   This is easy to do because there is no end game except enlightenment.  There is no case to win or lose, there is only the opportunity to become smarter – if not about the issue at hand, about how your “opponent” thinks.  Knowing how another who thinks differently than you approaches and analyzes issues will also make you smarter, as you experience a different way of thinking that will help you down the line in other circumstances where there is an end game.

In the “real” world, it is not always easy to be so open and honest about the way one thinks.  As lawyers, we negotiate to get our way.  We start way over here, hoping to end up over there.  We've all played the game, each side makes outrageous demands expecting the other side to do the same.  So we adjust our demands based on the expectations we have of where the other side wants to end up until eventually, after the expenditure of many resources, we end up close to where each side thinks they should be.  Each side walks away believing they got the short end of the deal, grumbling that the other side acted unfairly, complaining about the cost and waste of time, but happy to be done with the emotionally taxing process.  This scenario is played out every day across the world among lawyers, car salesman, commodity vendors, politicians, parents and children, and so on.  This is not the intellectually honest and intelligent discourse of which I speak at the beginning of this column.

Acknowledging the difficulty of acting open minded in an adversarial situation, I invite you as in-house counsel, to try a more open approach with your clients.  Say what you are really thinking, be open to viewing the matter from the perspective of the business person.  Allow yourself to be thoughtfully persuaded by the business to a different way of thinking.  It might not change your legal advice, but it will make you a better lawyer