|IMage [CC] - Frank Kovalchek|
Partners, Executives, CFOs, CIOs, CPOs, Marketers, and Legal Pricing Aficionados of all types, titles, and roles, I have come to report that the current state of legal pricing is absolutely chaotic.
There are three methods of dealing with a chaotic situation. First, the completely rational approach is to dig a hole, climb inside, and wait for the noise overhead to subside before coming out. Personally, I fight the urge to do that on a regular basis. The second option is to lower your shoulder and plow into the fray, driving hard and hoping beyond hope that the chaos has another side upon which you might one day emerge. This is the approach most of us are now valiantly attempting. And finally, you can stop pushing and seek a higher vantage point from where you can watch the chaos unfolding below. From there you can study the movement of the mob and look for patterns, repetitions, possibilities, and opportunities.
This State of Legal Pricing is my first attempt to describe our current situation from that higher vantage point. From this modest beginning, and with the help of my colleagues and the community at large, I hope we can begin to calm the chaos and create a rational market for legal services.
The Current Legal MarketThe market has fortunately grown tired of the Alternative Fee Arrangement (AFA) buzz-phrase-term and has begun to more properly focus its attention on the broader function of pricing. Pricing as a profession has been around for some time now and generally refers to the task of determining best prices for products and services in order to maximize profits. It should be noted, especially for those in the legal space, that profit maximization is not focused on a single sale. Instead it is measured at the firm, client, or product offering level. So for this discussion about the legal market, we will presume that the legal pricing function serves at that broader level, where prices attract customers and support the business.
Every market craves rational pricing. That is to say pricing where the buyer has some understanding of the value associated with their needs or the goods they are purchasing, and the seller has an expected revenue for each type of good or service. Unfortunately, the extreme range of services provided by law firms and the dynamic nature of the legal market itself have worked against the establishment of rational pricing for legal services at a product level.
The dynamism in the legal market comes about for several reasons. First, in my experience, there are not a lot of truly comparative legal service offerings from firm to firm, or even from matter to matter within firms. Litigation in a given category has a broad range of service types and pricing levels. From the highly complex to the mundane, prices vary to a significant degree. While we may eventually see fee-level pricing appear at the more commodity level for certain kinds of offerings, even there, we may never see a transparent market pricing mechanism.
Secondly, we don’t sell widgets. While there is a push for task coding of time entries as an attempt to establish pricing data on a per task level, a client does not buy one deposition, two filings, and a side of legal research. They buy resolutions to disputes. Even if we were to offer a fee per task pricing option, clients rarely if ever make purchasing decisions at the task level.
Suppose, for example, we set a standard price of $25,000 per deposition. Then in the course of a matter, we determined that a CEO or CFO needed to be deposed. Such a deposition would very likely require much greater resources and attention than the deposition of a mid-level executive. Should the firm honor their “standard deposition” rate for the deposition of a CEO and perform a lot of extra work for free? Should the firm differentiate low, medium, and high level deposition rates? We are now descending a slippery slope hoping for a rational stopping point.
Third, even if universal task codes were adopted across the industry, and were used effectively, the per task market price would still not be achieved without establishing much more detailed market information. As a market we haven’t even determined standard case types at this point. How much resource will we expend to agree upon task-level pricing for one sub-type? In the process, we may commit a significant amount of industry resource to develop a standard number that ultimately has no meaning within the specific confines of any specific case.
A rational market does not ascertain useless pricing data. It has no patience for that. So unless clients start buying depositions rather than resolutions, there will never be an incentive for the market to determine a price for depositions. Even if the market could determine such a price, it would only be for a certain level and type and would not be universally applicable. I just don’t see the market needing that level of detail in product pricing especially when it struggles to find reasonable pricing mechanisms for much higher product levels (e.g. - the matter level).
The most likely outcome of any overt attempt to create something like a legal pricing market is that rational pricing behaviors will only appear within tiny pockets of the market. To some degree, we can already see this beginning to happen at the far end of the commodity spectrum (e.g. patent prosecution). It is reasonable to expect that this commodity pricing will “evolve up” within certain market segments over time, but I question how far up it will or can go.
Given this challenging market environment, tomorrow we will turn to the behavior of the market participants driving such chaos.