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.

Listen

“We are given two ears, but only one mouth. This is because God knew that listening was twice as hard as talking.”

Unknown

Lawyers are taught to listen.  Good lawyers actually do listen.  But many of us are too busy thinking about what we are going to say next to actually listen carefully to what our partner in conversation is saying and the meaning behind the words.  Lawyers spend countless hours honing their writing and verbal skills.  However, being an excellent lawyer and a great business leader require exceptional listening skills.  People admire other people who listen to them, more so than the big talker in the room who believes that what he has to say is more important than what anyone else can possibly add to the conversation (or at least he acts this way).  Becoming a good listener will help you advance your career.  So what does it take to be a good listener?

Concentrate.  Good listening requires the listener to put aside all distractions and focus on the language, words and non-verbal cues the speaker is giving to you.  Focus on the words, the ideas and the feelings the speaker is expressing. Concentrate on the main ideas and points, try not to be distracted by off topic meanderings.

Pay attention.  Pay attention to the speaker, let her know that you are listening by acting like a listener.  All the while that you are assessing her communication with you (words, interpreting voice inflection and modulation, reading body language and facial expressions) she is doing the same.  She is looking at you trying to determine if what she is saying resonates with you, if you understand it, if the words “touch” your emotions or break through to your intellect.  Let her know that you are listening by maintaining eye contact, giving non-verbal cues such as nodding or leaning forward, look her in the eyes and let her feel that you “hear and you understand” what she is saying to you.

Maintain a receptive body posture – do not cross arms and legs or sit turned away from the speaker.  Rather, sit with arms gently to your side or slightly folded hands on your lap.  Do not play with your personal communication device – if necessary, turn it off in front of the speaker, sending a message that nothing is more important than what she has to say to you right now.

Be open.  Maybe, just maybe, the speaker will have something to say to you that you don’t already know.  If you have an attitude of objective receptiveness, she might convince you of a different and better way of thinking about a particular topic or a novel (to you anyway) means to approach a problem.  As lawyers, this can prove exceptionally difficult because we are often expected to have all the answers.  So we start to act as if we do.  It is amazing what we can learn when we accept that we do not have the answer for every problem and then listen carefully with an open mind to those who might have a deeper knowledge on a particular subject.

Restate the message the speaker gives you.  In this manner, you show that you are listening very carefully and that you have a desire to know exactly what she is trying to communicate to you.  Many times repeating the message in your own words gives rise to clarification or further development of the communication such that both parties benefit from a deeper dive into the subject matter.  Also, ask questions.  If you do not understand a point, or require further refinement, ask for clarification.

Do not interrupt.  You may think you can say it better than the speaker, but interrupting sends a clear unequivocal message that you believe what you have to say is much more important, relevant or insightful than what the speaker is saying.  Otherwise, why would you need to put an end to their message to get your own thoughts verbalized?

Put yourself in the speaker’s position so that you really have a better perspective as to where she is coming from.  Context is extremely important in understanding a person’s message and the “why” behind the need for its expression.

Remember, a conversation takes at least two people – a speaker and a listener.  Each party flips from one to the other in an instant.  For productive, meaningful conversations to take place, we cannot be thinking only about what we are going to say next.  We must exercise good listening skills to fully engage and learn the most we can from the conversation and hopefully, advance the cause of both the listener and the speaker.

“If you love to listen you will gain knowledge, and if you pay attention you will become wise.” 

Sirach 6:33

An Honorable Calling

“It takes many good deeds to build a good reputation, and only one bad one to lose it.”
– Benjamin Franklin

Practicing law is an  honorable calling.  Never ever forget that.  We are professionals duty bound to zealously represent our clients to the utmost of our ability.   Sometimes non-lawyers view lawyers as shifty characters who will go to any lengths to win a case.   I think this is because they don’t really understand how we work.  We make arguments that clients might not always understand.  We present the facts in a light most reasonable to the position that is favorable to our clients.  We posture.  We cajole.  We threaten.  We tear into people in search of the truth.  We often deal in unpleasantries. 

It is true - not many people are fond of lawyers as a group, until they need one. We sometimes then get the wink and knowing nod from the client, to demonstrate that they “understand” how we operate, they’ll play along and assume that we will take care of the dirty stuff outside of their presence.

Many clients do not understand that it is our sworn ethical obligation to represent them zealously, honestly and ethically.   I remember when I passed the bar some years back.  Someone sent me an article likening a new lawyer’s integrity to a brand spanking new shiny suit of armor.  The suit protects the lawyer’s untarnished reputation.   Each time the lawyer compromises his or her integrity, the armor is nicked, rust appears  corrupting the protective coating worn by the lawyer and eventually lays bare the vulnerable flesh beneath it.   This is an apt analogy don’t you think?

How many times have you encountered a lawyer that rarely does what he says he will do, cuts corners on advice, pads the bill a tad or fudges “just a little” on document production?  How do you view that lawyer when you next cross paths?   On the other hand, how many times have you encountered an adversary who behaves as the ultimate professional, who can be trusted not to take pot shots at you or use underhanded tactics to gain an edge?  At the end of the day, in which case does the client fare better?

Our jobs and our lives are complicated enough without having to negotiate the day (or the deal) worrying about whether or not the people with whom we are dealing can be trusted.  Whether with our adversaries or with our own clients, we have a responsibility to ourselves, to our clients and to our profession to be honest, to say what we mean, to do what we say, honor the profession, respect the law, do what is right and win.  How pleasant our professional lives are when we practice these principles and have them practiced on us.

So, polish up your suit of armor, strap it on for battle.  Shine for your clients and your profession.  Do the right thing.  Most of all protect your integrity, for at the end what does any one of us have left but our good name?