I posit that the most valuable skill that every corporate law department needs in 2021 and beyond is the executive art of the business case….The reasons for this are many, but I’ll give just one: This is a task that cannot be outsourced.  Without the ability to secure the budget and investment required by the demands on the function, corporate clients will remain forever trapped in a never-ending cost-cutting exercise, to the detriment of everyone involved.  Worse yet, sustained strain on the corporate legal function and its outside supply chain introduces net-new risk — legal, financial and compliance risks — not only for the enterprise but for the social system to which we all belong.

Jae Um

I concluded my last post, on ever-increasing demand and our resulting productivity imperative, with the observation, “Some law departments simply need more money. Not all of them will get it.” In what may be a mini-series of follow-up posts, I try expand some on the value of value storytelling with a bias towards the uncomfortable and controversial. As I have been recently helping some GCs with annual budgeting, my primary orientation here is in-house but many lessons are more generally applicable.

It depends (on context). As Jae says, the business case cannot be outsourced. While good questions tend to be universal, good answers are almost always context dependent. We are responsible for achieving mastery of our own context. Mastery entails being able to navigate our context successfully, a higher bar than issue spotting for outsiders as to why “that won’t work here.” Having an information advantage over outsiders is meaningless. Your audience, and your competition, are inside your organization.

This is supposed to be hard. The Australian women smashed the world record in the 4x200m freestyle relay during the 2021 Summer Olympics—and still only won bronze. Falling short is common when competing against the best in the world. In seeking to secure finite resources within a world-class organization, we likely face world-class competition.

Maybe, just maybe, don’t be MacGyver. When we are under-resourced, the temptation is to fill in the gaps through extraordinary effort augmented by ingenuity. Yet any system predicated on extraordinary effort is unsustainable.

In one sense, it is laudable to meet several unfunded mandates with a paperclip, chewed bubble gum, and some duct tape, while working nights/weekends. Then again, if our organization is accreting operational risk by underfunding mission-critical work, it is our responsibility, as a conscientious steward of said organization, to make this manifest and pursue adequate resourcing. Superhuman gap filling can be counterproductive. We undermine our own case. Extraordinary yet unsustainable performance masks deficiencies and gives outsiders the illusion we have all we need—almost no one cares how busy we are perpetuating the illusion.

I recognize not doing things that, ideally, should get done demands uncomfortable choices and uncomfortable conversations. That’s the job. Sometimes, it is incumbent upon us to be correct, consistent, and persistent (Andy Dufrensene) rather than heroic (MacGyver).

Be prepared to say “No” and “I told you so” often (and ever so politely). Not being MacGyver requires saying No more often, and more clearly. I am deeply familiar with the angst this triggers. Many legal professionals have rightly cultivated a service mentality and are committed to doing everything in their power to meet the multifaceted (and multiplying) needs of their organization. Saying No reeks of disappointment, if not outright dereliction of duty.

But, eventually, everything brittle breaks as stress accumulates. If resources are insufficient to do everything well, then some things will not be done well. Prioritization, by commission or omission, is inescapable. In many instances, the dominant strategy will be to concentrate scarce resources, rather than spread resources thin. Standard essentialism, deliberately not majoring in the minors.

Inevitably, some important stakeholder will issue a demand that falls into the “we don’t do that” or the “we do that but sporadically/slowly” category of our prioritization matrix. Because the stakeholder has juice, and we are committed to being of service, the path of least resistance will be to just say Yes, and then figure out how to—rob Peter to pay Paul—satisfy them somehow. But saying No is part of the job. As is spelling out Why.

Among the hardest truths to speak to power is explaining to the powerful that their power is insufficient in a given situation—to disclose not only that we are resource constrained, but to state plainly that their need, genuine though it may be, does not merit allocation of finite resources. Done indelicately, this will ruffle feathers. Done delicately, this will still ruffle feathers but can also foster alignment, recruiting allies and marshalling support for our efforts to secure resources—because we will deploy the incremental resources to satisfy these unmet needs.

As a master of our own context, we should know who our stakeholders are and take every opportunity not only to articulate what we are doing but also what we are not doing, and why. Our successes should be known. But so should our limitations and the consequences thereof, both patent and latent. Importantly, being explicit on the regular about the implications of deliberate strategic choices is a distinct exercise from whinging. Still, while maintaining the appropriate tone/focus, being a broken record can be devastatingly effective in ensuring our message penetrates—and, ultimately, resonates.

When the inevitable kerfuffle transpires because something was not, or will not be, done, it should be completely explicable to our primary stakeholders because we have accomplished the necessary foregrounding. We shouldn’t have to, literally, scream “I told you so!” while executing the accompanying dance with aplomb.

Rather, we should have positioned ourselves to, ever so gently, remind our stakeholders of previous, prescient conversations, presentations, memoranda, budget requests, resource plans, roadmaps, strategic overviews…..that predicted this eventuality. The crisis of someone complaining about us not meeting their needs is an opportunity to reinforce our messaging and should add weight to, not detract from, our business case.

Sometimes, politics get messy, favors are traded, and orders come down that we must meet the presently deprioritized need. Fair enough. While it is incumbent upon us to have an informed opinion on proper prioritization, the enterprise owns final say. Disagree and commit. But also be explicit as to what will be deprioritized in the forced reprioritization. Don’t pretend to have sufficient resources to do it all. Working harder/longer while putting on a happy front is appealing; we avoid discomfort in the immediate. But the problem with the easy way is eventually it becomes too damn hard.

More on this next post re the Siren’s Song of “Savings”

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Photo of Casey Flaherty Casey Flaherty

I am the co-founder and chief strategy officer at LexFusion, the go-to-market collective of legal innovation companies (tech and services). I am also the co-founder of Procertas (competency-based tech training). I was a BigLaw litigator and then in-house counsel who went into…

I am the co-founder and chief strategy officer at LexFusion, the go-to-market collective of legal innovation companies (tech and services). I am also the co-founder of Procertas (competency-based tech training). I was a BigLaw litigator and then in-house counsel who went into legal operations consulting before one of my BigLaw consulting clients hired me full-time to help them build the biggest and best legal project management team in world. A Lean Six Sigma black belt, I tend to think in terms of scalable systems that properly leverage people through process and technology. I am deeply experienced in legal operations, legal tech, strategic sourcing, process improvement, systems re-engineering, and value storytelling, in addition to spending over a decade in the legal trenches as a practitioner. I’ve long served  as a mesh point between law departments and law firms to promote structured dialogue that fosters deep supplier relationships (read about that here). I am a regular writer and speaker on practical legal innovation.